dismissed H-1B Case: Computer Programming

U.S. Citizenship 
and Immigration 
Services 
MATTER OF A-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: APR. 13,2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a 24-employee software development and computer programming services company, 
seeks to temporarily employ the Beneficiary as a "computer programmer analyst" under the H-1 B 
nonimmigrant classification for specialty occupations. See Immigration and Nationality Act (the 
Act) section 101(a)(l5)(H)(i)(b), 8 U.S.C. § 1101(a)(l5)(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 California Service Center denied the petition, concluding that the Petitioner had 
not established that the proffered position is a specialty occupation. 
The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and 
asserts that the Director erred in her findings. 
Upon de novo review, we will dismiss the appeal. 
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: 
Matter of A-, Inc. 
(1) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry 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 
particular 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 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.P.R.§ 214.2(h)(4)(iii)(A). We have consistent~y interpreted the term "degree" to mean not just 
any baccalaureate or higher degree, but one in a specific specialty that is directly related to the 
proposed position. See Royal Siam Corp. v. Chertof(, 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). 
II. PROFFERED POSITION 
In response to the Director's request for evidence (RFE), the Petitioner submitted the following 
description of the Beneficiary's duties: 
Time spen[t] on duties- 40% 
• Design, Analysis, Development, Testing, Deployment, Monitoring and 
Supporting of enterprise applications. 
• High-level design documentation, requirements gathering, business analysis, 
software installation, software configuration and application development and 
maintenance activities. 
• Designs and develops new software products 6r major enhancements. 
• Responsible to deliver high quality software solutions while working with client's 
delivery and output schedules with high performance and maintenance. 
• Review, repair and modify software systems to ensure technical accuracy & 
reliability of programs using scientific analysis and mathematical models. 
• Develop and maintain data and process models. · 
. • Designs, develops, enhances, debugs, and implements software solutions. 
Time spen[t] on duties- 40% 
• Validating and testing models to ensure adequacy and reformulate models. 
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Matter of A-, Inc. 
• Analyzing technology, resource needs, market demand to plan and assess the 
feasibility of project 
• Correct errors by making appropriate changes and rechecking the program to 
ensure that the desired results are produced. 
• Conduct trial runs of programs and software applications to be sure they will 
produce the desired information and that the instructions are correct. 
• Review the existing applications design to suggest best practice development 
techniques to reduce the throughput of the applications and also configuration 
changes for high availability of applications. 
• Responsible for end-to-end development of services which create innovative 
solutions and tools which match client specifications while maintaining a high 
level of client satisfaction. 
• Resolves problems with software and responds to suggestions for improvements. 
Time spen[t] on duties- 20% 
• Test applications and enhancements to the already existing applications/software 
as necessary 
• Employ contemporary testing methods to ensure applications function properly 
and without error. 
• Provide input regarding technical standards and customer requirements. 
• Consult with hardware engineers and other engineering staff to evaluate interface 
between hardware and software and operational and performance requirements of 
overall system. 
• Consult with customer concerning maintenance of software systems. May be 
required to co-ordinate installation of software system. 
• Train on use of information systems and provide technical and de-bugging 
support. 
• Perform systems analysis and problem resolution. 
The Petitioner stated that the minimum education required for the performance of the position is a 
"Bachelor's Degree in Computer Science, Computer Information Systems, or Engineering." 
III. ANALYSIS 
The Petitioner has not demonstrated that it would employ the Beneficiary in a specialty occupation. 
Specifically, the record does not establish that the job duties require an educational background, or 
its equivalent, commensurate with a specialty occupation. 1 
1 
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 
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Matter of A-, Inc. 
In denying the petition, the Director stated that the Petitioner did not establish that the proffered 
position qualifies as a specialty occupation and that the Petitioner has sut1icient work for the 
requested period of employment. 2 However, we find that the Petitioner has provided sufficient 
evidence to demonstrate that the Beneficiary will more like than not be assigned to an internal 
project developing the company's proposed [Petitioner name] software and that his 
work will not be driven by immediate client needs pursuant to a contract or work order; therefore, 
the Director's conclusion as to this issue is withdrawn. 
We do, however, concur with the Director that the proffered position does not qualify as a specialty 
occupation and we will perform a complete specialty occupation analysis under each of the four 
alternative criteria at 8 C.P.R. § 214.2(h)(4)(iii)(A) for the occupation of computer programmer, the 
occupation certified on the labor condition application (LCA). 
A. First Criterion 
We turn first to the criterion at 8 C.P.R. § 214.2(h)(4)(iii)(A)(l), 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 the U.S. Department of 
Labor's (DOL) Occupational Outlook Handbook (Handbook) as an authoritative source on the duties 
and educational requirements of the wide variety of occupations that it addresses. 3 
On the LCA submitted in support of the H-1 B petition, the Petitioner designated the proffered 
position under the occupational category "Computer Programmers" corresponding to the Standard 
Occupational Classification code 15-1131.4 
The subchapter of the Handbook entitled "How to Become a Computer Programmer" states the 
following: 
2 The Director stated that absent evidence of work orders or agreements demonstrating the Beneficiary's work for clients, 
it had not established that specialty occupation work was available for the requested validity period. 
3 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 we regularly review 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. 
4 The Petitioner classified the proffered position at a Level II wage. We will consider this ~election in our analysis of the 
position. The "Prevailing Wage Deterrnination Policy Guidance" issued by the DOL provides a description of the wage 
levels. A Level II wage rate is generally appropriate for positions for which the Petitioner expects the Beneficiary to 
have a good understanding of the occupation, but who will only perform moderately complex tasks that require 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://tlcdatacenter.com/download/ 
NPWHC~Guidance~Revised~ll~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 requirements of the Petitioner's 
job opportunity. !d. 
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Matter of A-, Inc. 
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. 
Most programmers specialize in a few programming languages. 
Education 
Most computer programmers have a bachelor's degree; however, some employers 
hire workers who have an associate's degree. Most programmers get a degree in 
computer science or a related subject. Programmers who work in specific fields, such 
as healthcare or accounting, may take classes in that field to supplement their degree 
in computer programming. In addition, employers value experience, which many 
students gain through internships. 
Most programmers learn a few computer languages while in school. However, a 
computer science degree gives students the skills needed to learn new computer 
languages easily. During their classes, students receive hands-on experience writing 
code, testing programs, fixing errors, and doing many other tasks that they will 
perform on the job. 
To keep up with changing technology, computer programmers may take· continuing 
education and professional development seminars to learn new programming 
languages or about upgrades to programming languages they already know. 
U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2016-17 ed., 
Computer Programmers, https://www.bls.gov/ooh/computer-and-information-technology/computer­
programmers.htm#tab-4 (last visited Mar. 27, 2017). 
According to the Handbook, the requirements to perform the duties of the computer programmer 
occupation incorporate a wide spectrum of educational credentials, including less than a bachelor's 
degree in a specific specialty. For example, the Handbook states that some employers hire workers 
who have an associate's degree. Furthermore, while the Handbook's narrative indicates that most 
computer programmers obtain a degree (either a bachelor's or associate's degree) in computer 
science or a related field, the Handbook does not report that at least a bachelor's degree in a specific 
specialty, or its equivalent, is normally the minimum requirement for entry into the occupation. 
In addition, the Occupational Information Network (O*NET) Summary Reports, referenced by the 
Petitioner, are also insufficient to establish that the proffered position qualifies as a specialty 
occupation normally requiring at least a bachelor's degree in a specific specialty, or its 
equivalent. O*NET OnLine does not state a requirement for a bachelor's degree for this 
occupation.· Rather, it assigns this occupation a Job Zone "Four" rating, which groups it among 
occupations for which "most ... require a four-year bachelor's degree, but some do not." O*NET 
OnLine Summary Report for "15-1131.00 Computer Programmers," 
http:/ /www.onetonline.org/link/summary/15-1131.00 (last visited Mar. 27, 20 17); O*NET OnLine 
Help - Job Zones, http://www.onetonline.org/help/online/zones (last visited Mar. 27, 
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Matter of A-, Inc. 
2017). Further, O*NET OnLine does not indicate that 4-year bachelor's degrees req.uired by Job 
Zone Four occupations must be in a specific specialty directly related to the occupation. Therefore, 
O*NET OnLine information is not probative of the proffered position being a specialty occupation. 
In this case, the Petitioner has not established that the proffered position falls under an occupational 
category for which the Handbook, or another authoritative source, indicates that normally the 
minimum requirement for entry is at least a bachelor's degree in a specific specialty, or its 
equivalent. The Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l). 
B. 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 tirst prong 
concentrates upon the common industry practice, while the alternative prong narrows its focus to the 
. Petitioner's specific position. 
1. First Prong 
To satisfy this 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. 
When determining whether there is such a common degree requirement, factors often considered 
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)(quotingHird/BlakerCorp. v. Sava, 712F. Supp.1095, 1102(S.D.N.Y.l989)). 
The Petitioner has not established that its proffered position is one for which the Handbook (or other 
independent, authoritative sources) reports an industry-wide requirement for at least a bachelor's 
degree in a specific specialty, or its equivalent. Thus, we incorporate by reference the previous 
discussion on the matter. Also, there are no submissions from the industry's professional association 
indicating that it has made a degree a minimum entry requirement. 
As noted, the Petitioner asserts that a bachelor's degree in computer science, computer information 
systems, or engineering is minimally required to perform the duties of the position. Jn support of 
this assertion, the Petitioner provided six job announcements for positions with other companies. 
However, we are unable to determine that these companies are similar to the Petitioner. Although 
the Petitioner indicates the number of employees working for each of these companies, it does not 
articulate how this demonstrates their similarity to the Petitioner, particularly since the number of 
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Matter of A-, Inc. 
' 
employees working for these companies varies from four to 48.5 Most of the announcements do not 
indicate the industry in which the prospective employer operates, whereas two others operate in 
dissimilar industries such as educational materials and emergency medicine. Although these job 
announcements state that a bachelor's degree in computer science or a related field is commonly 
required, there is no mention of bachelor's degrees in computer information systems or engineering, 
other degrees the Beneficiary contends would be sufficient. Further, consistent with the Handbook, 
one job announcement states that an associate's degree and prior experience would suffice. 
Accordingly, it is not possible to conclude from the provided advertisements that the positions are 
parallel to the proffered position in their duties and level of responsibility. The job advertisements 
do not establish that organizations similar to the Petitioner routinely employ individuals with degrees 
in a specific specialty, in parallel positions in the Petitioner's industry. 
As the record does not include probative evidence that a "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, 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.P.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. 
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 
5 The Petitioner indicates in the Fonn 1-129 that it employs 24 individuals. 
Matter of A-, Inc. 
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 her 
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 specifiG 
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). 
C. 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. 
To satisfy this criterion, the record must establish that the specific performance requirements of the 
position generated the recruiting and hiring history. A petitioner's perfunctory declaration of a 
particular educational requirement will not mask the fact that the position is not a specialty 
occupation. We must examine the actual employment requirements and, on the basis of that 
examination, determine whether the position qualifies as a specialty occupation. See generally 
Defensor, 201 F.3d 384. In this pursuit, the critical element is not the title of the position, or the fact 
that an employer has routinely insisted on certain educational standards, but whether performance of 
the position actually requires the theoretical and practical application of a body of highly specialized 
knowledge, and the attainment of a baccalaureate or higher degree in the specific specialty, or its 
equivalent, as the minimum for entry into the occupation as required by section 214(i)(l) of the Act. 
According to the Court in Defensor, "To interpret the regulations any other way would lead to an 
absurd result." Jd. at 388. If we were constrained to recognize a specialty occupation merely 
· because the petitioner has an established practice of demanding certain educational requirements for 
the proffered position - and without consideration of how a beneficiary is to be specifically 
employed - then any beneficiary with a bachelor's degree in a specific specialty could be brought 
into the United States to perform non-specialty occupations, so long as the employer required all 
such employees to have baccalaureate or higher degrees. See id. 
In response to the Director's RFE, the Petitioner stated that it has "Five (5) individuals. performing 
services in the capacity of a Computer Programmer Analyst." The Petitioner listed their names, 
titles, education levels, and provided supporting payroll and IRS W-2 Wage and Tax Statements 
confirming their employment. The list identified that these employees hold the equivalent of 
Bachelor's of Science and Master's degrees in mechanical engineering, electrical engineering, and 
computer science. 
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Matter of A-, Inc. 
However, a list provided by the Petitioner reflects that only three of the five employees act in the 
capacity of "computer programmer analyst," while the other two employees are identified as 
"programmer analysts." The Petitioner has not explained or documented the difference between 
these positions and their duties and responsibilities. 6 Absent this evidence, we cannot conclude that 
all of the listed positions are the same as the proffered position. Further, the organizational chart 
also submitted in response to the Director's RFE reflects that it employs nine computer programmer 
analysts. The Petitioner has not resolved these inconsistencies with independent, objective evidence 
pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). As such, it 
appears that we have only been provided educational credentials for three of the company's nine 
computer programmer analysts. The Petitioner also did not submit information as to the duties and 
responsibilities of these three employees. 
Therefore, the Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(3). 
D. 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. 
The Petitioner asserts that the job duties of the proffered position are specialized and complex. 
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 Petitioner only provides a generic description of duties and responsibilities, 
including familiarity and experience with different technological platforms and applications it 
expects from the Beneficiary. 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. 
The Petitioner has not provided sufficient evidence that the duties, as generally described, require 
more than technical proficiency in the information technology field. The Petitioner has not 
demonstrated 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). 
6 An organizational chart submitted by the Petitioner also indicates there are positions titled "computer programmer 
analysts" and "programmer analysts." 
9 
Matter of A-, Inc. 
Because the Petitioner has not satisfied one ofthe 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. The appeal will be 
dismissed for this reason. 
IV. CONCLUSION 
The appeal is dismissed because the Petitioner has not established that the proffered position is a 
specialty occupation. 
ORDER: The appeal is dismissed. 
Cite as Matter of A-, Inc., ID# 298795 (AAO Apr. 13, 2017) 
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