dismissed H-1B Case: Computer Programming

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: MAR. 06, 2025 In Re: 36671878 
Appeal of California Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (H-lB) 
The Petitioner seeks to temporarily employ the Beneficiary under the H-IB nonimmigrant 
classification for specialty occupations. See Immigration and Nationality Act (the Act) section 
10l(a)(l5)(H)(i)(b), 8 U.S.C. § 110l(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 the record did not 
establish that the Petitioner's proffered job qualified as a specialty occupation under section 
101(a)(15)(H)(i)(b) of the Act. The matter is now before us on appeal pursuant to 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe , 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christa 's, Inc. , 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
I. LAW 
"Specialty Occupation" is defined as an occupation that requires: (A) the 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. See section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l) . 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) 1 adds a non-exhaustive list of fields of endeavor to the 
statutory definition. And the regulation at 8 C.F.R. § 214.2(h)(4)(iii)(A) requires that the proffered 
position must also meet one of the following criteria to qualify as a specialty occupation: 
1 On December 18, 2024, the U.S. Department of Homeland Security issued a final rule to, among other things, clarify the 
specialty occupation standard, codify existing practice, and align the regulations with the authorizing statute. The final 
rule is applicable to petitions filed on or after January 17, 2025 . As this petition was filed before January 17, 2025 we will 
refer and cite to the regulations in effect at that time. 
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. 
USCIS analyzes the employer's prior practice, as well as the industry norm for parallel positions, to 
assure that a petitioner's requirements do not merely state a degree requirement or its equivalent in a 
specific specialty when such a degree is not actually required to perform the proffered job duties. 
See Matter of Caron International, Inc., 191 I&N Dec. 791, 793-794 (BIA 1988) The burden of 
proof to establish eligibility under the statute and regulation is squarely a petitioner's alone. See Royal 
Siam Corp. v. Chertoff, 484 F.3d 139, 145 (1st Cir. 2007) ("The burden of proving that a particular 
position comes within this taxonomy (and thus qualifies as a specialty occupation) is on the 
applicant."). 
Moreover, job title or broad occupational category alone does not determine whether a particular job 
is a specialty occupation under the regulations and statute. The nature of a petitioner's business 
operations along with the specific duties of the proffered job are also considered. We must evaluate 
the employment of the individual and determine whether the position qualifies as a specialty 
occupation. See Defensor v. Meissner, 201 F.3d 384 (5th Cir. 2000). So, a petitioner's self-imposed 
requirements are not as critical as whether the nature of the offered position requires the application 
of a theoretical and practical body of knowledge gained from earning the required baccalaureate or 
higher degree in the specific specialty (or its equivalent) required to accomplish the duties of the job. 
The statute and regulations must be read together to ensure the proffered position meets the definition 
of a specialty occupation. See K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (holding that 
construction of language which takes into account the design of the statute as a whole is preferred); 
see also COIT Independence Joint Venture v. Fed. Sav. And Loan Ins. Corp., 489 U.S. 561 (1989); 
Matter of W-F-, 21 I&N Dec. 503 (BIA 1996). Considering the statute and the regulations separately 
could lead to scenarios where a petitioner satisfies a regulatory factor, but not the definition of 
specialty occupation contained in the statute. See Defensor, 201 F.3d at 387. The regulatory criteria 
read together with the statute gives effect to the statutory intent. See Temporary Alien Workers 
Seeking Classification Under the Immigration and Nationality Act, 56 Fed. Reg. 61111, 61112 (Dec. 
2, 1991). 
So, we construe the term "degree" in 8 C.F.R. § 214.2(h)(4)(iii)(A) to mean not just any baccalaureate 
or higher degree or its equivalent, but one in a specific specialty that is directly related to the proffered 
position supporting the statutory definition of specialty occupation or its equivalent. See Royal Siam 
Corp., 484 F.3d at 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"). USCIS' 
application of this standard has resulted in the orderly approval of H-lB petitions for engineers, 
2 
certified public accountants, information technology professionals, and other occupations 
commensurate with what Congress intended when it created the H-lB category. 
II. ANALYSIS 
Upon review of the record in its totality, we conclude that the Petitioner has not established that the 
proffered position qualifies as a specialty occupation. The record does not sufficiently establish the 
substantive nature of the proffered position, which precludes us from determining that the proffered 
position qualifies as a specialty occupation the applicable statute and regulations. 
We are unable to ascertain the position's substantive nature due to the vague and inconsistent 
expression of the Petitioner's proffered position and its terms and conditions. And if we cannot 
ascertain the position's actual, substantive nature, then we cannot determine whether it satisfies at least 
one of the specialty-occupation criteria enumerated at 8 C.F.R. § 214.2(h)( 4)(iii)(A)(])-( 4). We 
therefore agree with the Director that the Petitioner has not established that the position is a specialty 
occupation. 
The Petitioner filed the Form 1-129, Petition for Nonimmigrant Worker, on the Beneficiary's behalf 
seeking a determination that its computer programmer - business intelligence position is a specialty 
occupation under section 214(i)(l) of the Act so that the Beneficiary could be admitted to the United 
States and undertake the proffered position in H-1 B classification at its principal place of business in 
I I Texas and the record contains a certified labor condition application (LCA) for that 
location. The Petitioner stated it was founded in 2001 and "provides custom computer programming 
services" employing "ten people, who provide services to [its] clients located in states including but 
not limited to Texas, New York, Massachusetts, and New Jersey." The Petitioner describes its "core 
competence" as "providing customized services and solutions to meet the individual needs and 
requirements of [its] clients" in systems analysis and design, application development and testing, data 
migration, and enterprise architecture and technology. 
After review of the initial petition the Director observed the initial evidence in the record was 
insufficient to demonstrate that the proffered computer programmer - business intelligence position 
was a specialty occupation because the Department of Labor's Occupational Outlook Handbook 
(Handbook) indicated that a range of credentials, including experience alone, may qualify an 
individual to perform the duties of a computer programmer. 2 So, she issued a request for evidence 
(RFE) directing the Petitioner to demonstrate its proffered computer programmer - business 
intelligence position was a specialty occupation as described in the statue and applicable regulations. 
The Director also requested the Petitioner provide additional employer information regarding its 
organization. 
In response to the RFE, the Petitioner submitted its Certificate of Incorporation, Articles of 
Incorporation, explanation for lack of business licensure, clarification regarding the meaning of a 
certificate of formation, a brochure purporting to detail the Petitioner's offered services and clients, 
2 We do not agree with the Director's conclusion. Whilst the Handbook entry for computer programmers does include a 
range of credentials, the stated range of fields are sufficiently related to one another and the duties of the computer 
programmer occupation such that they comprise a specialty required to perform the duties of a computer programmer. See 
generally Innova Sols., v. Baran, 983 F.3d 428 (9th Cir. 2020). 
3 
two case studies of projects the Petitioner has completed, 2023 state quarterly wage reports, 2023 and 
2024 federal quarterly tax returns, W-2s issued to all employees in 2023, 2023 USIRS Form 1120-S 
Income Tax Return for an S Corporation, organizational chart, photos of its business premises, and 
copy of floorplan and lease for business premises. 3 
After review of the Petitioner's response to the RFE, the Director denied the petition based on their 
determination that the record did not establish the Petitioner's proffered job qualified as a specialty 
occupation under section 101(a)(l5)(H)(i)(b) of the Act. 4 
We cannot conclude the Petitioner has demonstrated its proffered positions qualifies as a specialty 
occupation because it has submitted discordant and diverging information regarding the proffered 
position's terms and conditions, which obscures the position's substantive nature. At the outset, we 
note that the proffered position's duties are inconsistently shown on Form I-129 H Classification 
Supplement, the Petitioner's petition support letter, and other documents in the record. For example, 
the Petitioner's description in the form requires the occupant of the proffered computer programmer 
- business intelligence position to "create" code and scripts for computer applications. But the 
description in the rest of the record expects the position's occupant to "conceive" (a potential synonym 
for "create" in this context) "logical structures." It is unclear in the record whether "logical structures" 
refers to computer applications, or seemingly more complex subjects such as full computer systems 
of applications and hardware or specialized utility programs. 
3 The Petitioner submitted United States Department of Labor regulations, appendixes, and Program Electronic Review 
Management (PERM) data summaries, in addition to industry articles about business intelligence and data warehousing to 
demonstrate that the computer programmer occupation generally, and its specific proffered computer programmer -
business intelligence position, met the statutory and regulatory requirements to be classified as a specialty occupation. At 
the outset, the evidence did not preponderantly support the Petitioner's assertions because it did not contain job duties, and 
it did not identify a specialty formed by the diverse educational requirements listed. The Petitioner asserted the evidence 
in the record demonstrated a baccalaureate or higher degree in a specialty was the n01mal requirement for entry to the 
position, that the requirement of a degree was common to the industry in parallel positions among similar organizations, 
that its particular position is complex or unique that it can be performed only by an individual with a degree, that it normally 
requires a degree or its equivalent for the position; and that 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. 
But, as discussed herein, the inconsistent statements and diverse positions undertaken by the Petitioner here render it 
impossible to evaluate what the Petitioner's tme proffered job opportunity is and if performance of its duties would require 
theoretical and practical knowledge gained after earning a baccalaureate degree in a specific specialty. 
4 The Petitioner also asserted in response to the RFE and on appeal that Matter of Perez, 12 T&N Dec. 701 (D.D. 1968) 
stood for the proposition that any profession is automatically a specialty occupation under the statute as amended and the 
regulations. This is incorrect. Congress created the modem H-lB program as part of the Immigration Act of 1990, Pub. 
L. No. 101-649, 104 Stat. 4978. In doing so, it pivoted away from the prior H-1 standard of whether a position was 
"professional." Instead, petitioners were now required to demonstrate that a proffered position qualified as a "specialty 
occupation." Section 101 (a)(l5)(H)(i)(b) of the Act. In the final rule setting forth the requirements for the revamped H-1 
B program, the agency, responding to commenters suggesting that the proposed regulatory "specific specialty" requirement 
"was too severe and would exclude certain occupations from classifications as specialty occupations," stated that "[t]he 
definition of specialty occupation contained in the statute contains this requirement." Temporary Alien Workers Seeking 
Classification Under the Immigration and Nationality Act, 56 Fed. Reg. 61111, 61112 (Dec. 2, 1991 ). The primary and 
fundamental difference between qualifying as a profession and qualifying as a specialty occupation therefore is that 
specialty occupations require the U.S. bachelor's or higher degree to be in a specific specialty, or its equivalent. Thus, 
although an occupation may be specifically identified as qualifying as a profession as that term is defined in section 
101(a)(32) of the Act, that occupation would not necessarily qualify as a specialty occupation unless it met the definition 
of that term at section 214(i)(l) of the Act. 
4 
And, more troublingly, inconsistency appears in the Petitioner's description and expression of its 
business operations and objectives. The Petitioner has submitted 16 W-2 Wage Statements for 
employees in employed in 2023. About 10 of the 16 forms reflect employees with residential 
addresses outside of a commutable distance from the Petitioner's I I Texas location. The 
record reflects the Petitioner describes its "core competence" as "providing customized services and 
solutions to meet the individual needs and requirements of [its] clients" in systems analysis and design, 
application development and testing, data migration, and enterprise architecture and technology. But 
the Petitioner also describes itself in documents present in the record as a provider of "need-based, 
cost conscious, timely and competent manpower solutions ( emphasis added)." Whilst the former 
describes activities and functions in custom computer programming, the latter apparently describes 
staff augmentation. It is well within reason and possibility that a custom computer programming entity 
and a staff augmentation agency could employ computer programmers. But the Petitioner here has 
not consistently represented its business operations and objectives. So, the Petitioner's alternating 
demonstration of its business operations and objectives raises unsatisfied concerns about the 
substantive nature of the proffered position and its status as a specialty occupation. And these 
inapposite renderings of its business type raise doubts about whether the Petitioner's proffered job 
would require accomplishing duties requiring theoretical and practical knowledge gained after 
completion of a baccalaureate degree or its equivalent in the specialty. 
The seeds of doubt planted by the Petitioner's discordant manifestations of its business operations and 
objectives are also amplified by the pictures it submitted of its principal place of business. It is unclear 
how the Petitioner and its employees provide "customized services and solutions to meet the individual 
needs and requirements of [its] clients" in systems analysis and design, application development and 
testing, data migration, and enterprise architecture and technology from premises seemingly equipped 
only with a lobby and two executive offices. And whilst this seeming lack of adequate facilities could 
be explained if the Petitioner's principal business was the provision of "competent manpower 
solutions" or staff augmentation (which generally requires employees be stationed at the premises of 
clients who have engaged the staff augmentation agency for its services), the Petitioner has not 
represented with evidence or assertion that the proffered computer programmer - business intelligence 
position would provide services in a staff augmentation paradigm. 
Moreover, the record raises questions as to whether the services of computer programmers are even 
contemplated within the Petitioner's business structure. Whilst the organizational chart the Petitioner 
submitted lists several individuals under a "computer programmer" designation in the line and block 
chart, a brochure the Petitioner submitted which served as a "true and accurate copy of the catalogue 
approved with the" now defunct Texas Building and Procurement Commission did not list computer 
programmer amongst its services descriptions. It is not clear how the catalog described the Petitioner's 
offering of "programming services, computer" without including computer programmers in its 
services descriptions. And the other service descriptors listed in the catalog, such as technology leader, 
senior database architect/administrator, security specialist, software programmer, and programmer 
analyst do not appear in the Petitioner's organizational chart. Additionally, the record does not contain 
material, relevant, or persuasive documentation which addresses how the software programmer and 
programmer analyst service descriptors in the Petitioner's brochure correspond to the computer 
programmer - business intelligence the Petitioner has proffered to the Beneficiary as part of this 
nonimmigrant petition. 
5 
In sum, we are unable to assess, categorize, and comprehend the Petitioner's business and proffered 
job due to the Petitioner's inconsistent and discrepant descriptions of its business objective, its 
business operations, and the duties it expects the proffered job to perform. The Petitioner's 
inconsistent expressions described above obscure whether the proffered job is a specialty occupation 
because they do not permit us to evaluate how or in what form the Petitioner cultivates an environment 
supporting a specialty occupation position. We are therefore unable to ascertain the proffered 
position's substantive nature due to the deficiencies outlined above. And since we cannot determine 
its substantive nature, we cannot conclude whether the position qualifies as a specialty occupation 
under any of the criteria enumerated at 8 C.F.R. § 214.2(h)(4)(iii)(A)(])-(4). 
III. CONCLUSION 
The appeal will be dismissed for the above stated reasons. In visa petition proceedings, it is the 
Petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 
8 U.S.C. § 1361. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
6