dismissed H-1B Case: Computer Programming

U.S. Citizenship 
and Immigration 
Services 
In Re: 17016824 
Appeal of California Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: JUN. 11, 2021 
The Petitioner seeks to temporarily employ the Beneficiary under the H-lB nonimmigrant classification 
for specialty occupations.1 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 speciali zed 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 California Service Center Director denied the petition, concluding that the Petitioner did not 
establish that the proffered position is a specialty occupation and the Beneficiary is qualified for the 
proffered position. In these proceedings, it is the Petitioner's burden to establi sh eligibility for the 
requested benefit by a preponderance of the evidence.2 
Upon de nova review, we will dismiss the appeal.3 
I. LEGAL FRAMEWORK 
According to the filing requirements for applications and petitions found at 8 C.F.R. § 103.2(b)(l): 
[A]n applicant or petitioner must establish that he or she is eligible for the requested 
benefit at the time of filing the benefit request and must continue to be eligible through 
adjudication. Each benefit request must be properly completed and filed with all initial 
evidence required by applicable regulations and other USCIS instructions. Any 
evidence submitted in connection with a benefit request is incorporated into and 
considered part of the request. 
The regulations require that before filing a Form 1-129, Petition for a Nonimmigrant Worker , a 
petitioner obtain a certified labor condition application (LCA) from the U.S. Department of Labor 
(DOL) in the occupational specialty in which the H-lB worker will be employed.4 Additionally, a 
1 See Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b). 
2 See section 291 of the Act; Matter of Chawathe, 25 l&N Dec. 369, 375 (AAO 2010). 
3 See Matter of Christo 's Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). 
4 See 8 C.F.R. § 214.2(h)(4)(i)(B). 
petitioner submits the LCA to the DOL to demonstrate that it will pay an H-1B 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 duties, experience, and qualifications. 5 
Section 101(a)(15)(H)(i)(b) of the Act defines an H-1B nonimmigrant as a foreign national "who is 
coming temporarily to the United States to perform services ... in a specialty occupation described in 
section 214(i)(1) ... "(emphasis added). Section 214(i)(I) of the Act, 8 U.S.C. § 1184(i)(I), defines the 
term "specialty occupation" as an occupation that requires "theoretical and practical application of a 
body of highly specialized knowledge, and 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 section 214(i)(I) of the Act but adds a 
non-exhaustive list of fields of endeavor. In addition, 8 C.F.R. § 214.2(h)(4)(iii)(A) provides that the 
proffered position must meet one of four criteria to qualify as a specialty occupation position. 6 Lastly, 
8 C.F.R. § 214.2(h)(4)(i)(A)(1) states that an H-1B classification may be granted to a foreign national 
who "will perform services in a specialty occupation ... " (emphasis added). 
Accordingly, to determine whether the Beneficiary will be employed in a specialty occupation, we 
look to the record to ascertain the services the Beneficiary will perform and whether such services 
require the theoretical and practical application of a body of highly specialized knowledge attained 
through at least a bachelor's degree or higher in a specific specialty or its equivalent. Without 
sufficient evidence regarding the duties the Beneficiary will perform, we are unable to determine whether 
the Beneficiary will be employed in an occupation that meets the statutory and regulatory definitions of 
a specialty occupation and a position that also satisfies at least one of the criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A). 7 The services the Beneficiary will perform in the position determine: (1) the 
normal minimum educational requirement for entry into the particular position, which is the focus of 
criterion 1; (2) industry positions which are parallel to the proffered position and thus appropriate for 
review for a common degree requirement, under the first alternate prong of criterion 2; (3) the level of 
complexity or uniqueness of the proffered position, which is the focus of the second alternate prong 
of criterion 2; (4) the factual justification for a petitioner normally requiring a degree or its equivalent, 
when that is an issue under criterion 3; and (5) the degree of specialization and complexity of the 
specific duties, which is the focus of criterion 4.8 
By regulation, the Director is charged with determining whether the petition involves a specialty 
occupation as defined in section 214(i)(1) of the Act. 9 The Director may request additional evidence 
5 See section 212(n)(1) of the Act, 8 U.S.C. § 1182(n)(l)(A); 20 C.F.R. § 655.731(a). 
6 8 C.F.R. § 214.2(h)(4)(iii)(A) must be read with the statutory and regulatory definitions of a specialty occupation under 
section 214(i)(1) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). We construe 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. 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"). 
7 Of note, the Petitioner does not assert or provide documentary support that its degree requirement is common to the 
industry in parallel positions among similar organizations pursuant to criterion 2 or that the employer normally requires a 
degree or its equivalent for the position pursuant to criterion 3. 
8 See 8 C.F.R. § 214.2(h)(4)(iii)(A). 
9 See 8 C.F.R. § 214.2(h)(4)(i)(B)(2). 
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in the course of making this determination.10 Where, as here, a petitioner has been put on notice of a 
deficiency in the evidence and has been given an opportunity to respond to that deficiency, we will 
not accept evidence11 offered for the first time on appeal.12 The appeal will be adjudicated based on 
the record of proceedings before the Director. 
II. ANALYSIS 
Upon review of the record in its totality, we conclude that the Petitioner has not filed an LCA pursuant 
to section 212(n)(1) of the Act; 20 C.F.R. § 655.731(a), and has therefore not met the filing 
requirements at 8 C.F.R. § 103.2(b)(1). In addition, the Petitioner has not adequately established the 
services the Beneficiary will perform, which precludes a determination of whether the proffered 
position qualifies as a specialty occupation under sections 101(a)(15)(H)(i)(b), 214(i)(1) of the Act; 
8 C.F.R. § 214.2(h)(4)(i)(A)(1), 8 C.F.R. § 214.2(h)(4)(ii) and (iii)(A). 13 
A. LCA 
On the LCA submitted in support of the H-1B petition, the Petitioner designated the proffered position 
under the occupational category "Computer Programmers" corresponding to the standard occupational 
classification (SOC) code 15-1131 and selected the Level IV wage. At the time the LCA was certified, 
the Level IV prevailing wage in the area of intended employment for "Computer Programmers" was 
$108,077.14 However, the Petitioner listed an incorrect prevailing wage on the LCA. Further, the 
Beneficiary's proffered salary is lower than the prevailing wage in the area of intended employment 
for "Computer Programmers."15 Therefore, the Petitioner has not demonstrated that it would offer a 
wage equal to or greater than that required by law16 and the appeal may be dismissed on the issue of 
this requirement alone.17 
However, even if the Petitioner had offered the Beneficiary the required wage, the record does not 
sufficiently establish the duties the Beneficiary would perform to determine whether the Beneficiary 
will be employed in a specialty occupation. 
10 See 8 C.F.R. § 103.2(b)(8). 
11 On appeal, the Petitioner provides "additional information" regarding the Beneficiary's duties, an undated job 
advertisement, and documents relating to the evaluation of the Beneficiary's degrees. 
12 See Matter of Soriano, 19 l&N Dec. 764, 766 (BIA 1988); see also Matter of Obaigbena, 19 l&N Dec. 533, 537 (BIA 
1988). 
13 The Petitioner submitted documentation in the underlying record to support the H-lB petition, including evidence 
regarding the proffered position and its business operations. Although we may not discuss every document submitted, we 
have reviewed and considered each one. 
14 See https://www.flcdatacenter.com/OesQuickResu1ts.aspx?code=15-1131&area=e=J&year=20&source=1 (last 
visited Jun. 11, 2021). 
15 The record contains inconsistencies regarding the Beneficiary's salary. However, in all variations, the proffered salary 
is lower than the prevailing wage. For example, the job offer submitted with the initial filing lists the Beneficiary's salaiy 
as $102,000. Part 5, question 9 of the Form 1-129, Petition for a Nonimmigrant Worker, has the wages at $103,000 per 
year, while Section 1, question 4 of the Form 1-129 Filing Fee Exemption Supplement states the rate of pay per year is 
$102,000. Part F, at questions 10 and 11 of the LCA lists the wage rate paid to nonimmigrant workers as ranging from 
$101,000 to $105,000. 
16 See section 212(n)(1) of the Act; 20 C.F.R. § 655.731(a). 
17 See 8 C.F.R. § 103.2(b)(1). 
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B. Substantive Nature 
The Petitioner, founded in 2006, describes itself as a "computer system design and consulting" 
company with two employees. The Petitioner states the Beneficiary will be employed as a "computer 
application analyst" and in response to the Director's request for evidence (RFE) describes the offered 
position and nature of the business as follows: 
[T]he position shall require skill in computer programming; software analysis and 
design, writing modules to convert business process into software modules to meet 
given business requirements; writing software fetch data from database; installing 
software and associated hardware like printers, scanners; working on cybersecurity 
features, such as patches, windows defender; development of software for 
development and quality assurance and production environment. Providing security 
measures such as encryption techniques, firewall, network separation; WAP 
protection, etc .... [The Petitioner] is also working product development in cyber 
security for IP and port managements, to which the beneficiary will play a major role 
in building concept design and development. 
To determine whether a particular job qualifies as a specialty occupation, we do not simply rely on a 
position's title. The specific duties of the proffered position, combined with the nature of the 
petitioning entity's business operations, are factors to be considered. We must examine the ultimate 
employment of the individual, and determine whether the position qualifies as a specialty 
occupation.18 The Petitioner, however, does not provide information describing itself, e.g., context 
for the work it performs, who it provides consulting services for, or how it is structured, in order for 
us to understand the nature of the Petitioner's business or the Beneficiary's role within the business. 
For example, by describing itself as a computer systems design company, even if limited to cyber 
security issues, the Petitioner has not provided enough information establishing the nature of its 
business. Without information describing the Petitioner's product, or the nature of the companies it 
performs consultation services for, we are unable to determine, for example, the type of work, much 
less the level of complexity of the work the Petitioner provides. There is no explanation of the 
organizational structure, so we are unable to determine the Petitioner's size, i.e., whether there are 
non-U.S. employees or offices, or who the Beneficiary will report to, be controlled by or work with, 
which would explain, e.g., the level of responsibility the Beneficiary holds. Here, we are not only 
unclear on the nature of the petitioning entity's business but the Petitioner also does not provide 
substantive details regarding the duties the Beneficiary will perform. 
While the Petitioner states, "The beneficiary will be engaged 50% in design and development of the 
product and 50% in the support of day to day office network management, cybersecurity and support 
functions," the Petitioner does not explain, for instance, what type of design work the Beneficiary will 
perform, what network is being supported and how complex is the support being provided. While the 
above quoted description notes programming and software analysis duties, it also describes installing 
software and hardware, which may not necessarily qualify as specialty occupation work, and product 
design and development, which are duties more aligned with "Software Developers, Applications" 
18 See generally Defensor v. Meissner, 201 F.3d 384 (5th Cir. 2000). 
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SOC 15-1132,19 an occupation that requires a higher wage.20 The lack of substantive detail not only 
makes it difficult to ascertain whether the duties align with the "Computer Programmer" occupational 
category but also to analyze any claimed uniqueness or complexity and specialized nature of these 
duties. 
The record also does not clearly establish the minimum educational requirement for the position. The 
Petitioner states, "[a] [d]egree is [n]ormally [the] minimum requirement - [the] [B]eneficiary has [a] 
bachelor's and master's degree in the field of computer science." The Petitioner appears to be 
identifying the minimum degree requirement for the position as computer science because it is the 
degree held by the Beneficiary. However, the test to establish a position as a specialty occupation is 
not the skill set or education of a proposed beneficiary, but whether the position itself qualifies as a 
specialty occupation. The Petitioner also states, "[t]he work ... requires that the person have studied 
computer science subjects which would include study programming, data management, data security, 
application security and programming." While a few related courses may be beneficial in performing 
certain duties of the position, the Petitioner's statements do not establish how a 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. The Petitioner states the work requires, "specialized 
knowledge and expertise in cybersecurity and programming, which are important components of the 
education in computer science and master's degree in cyber security." However, these statements 
cloud whether the Petitioner is trying to establish that the minimum degree requirement is a bachelor's 
or master's degree and whether a degree in cybersecurity21 combined with computer programming are 
required as the minimum degree requirement for entry into the occupation. The Petitioner must resolve 
ambiguities in the record with independent, objective evidence pointing to where the truth lies.22 The 
Petitioner does not cite to any authoritative source to support its assertions regarding the required 
minimum degree for the position, and the nature of the duties is not substantively developed to support 
the minimum degree requirement. 
Without sufficient evidence regarding the duties the Beneficiary will perform or the minimum degree 
required for entry into the occupation, we are unable to determine whether the Beneficiary will be 
employed in a position that meets the statutory and regulatory definitions of a specialty occupation and 
also satisfies at least one of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A). 
19 "Software Developers, Applications" design, develop and modify software systems. See O*NET Online Summary 
Report for "15-1132.00 - Software Developers, Applications," https://www.onetonline.org/Archive_ONET­
SOC_2010_ Taxonomy_09_2020/link/summary/15-1132.00 (last visited Jun. 11, 2021). 
20 If the Petitioner's duties for the position fall under more than one related occupational category, it must designate the 
relevant occupational code for the highest paying occupation. See 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/NPWHCGuidance_Revised_11_2009.pdf. At the time the Petitioner's LCA was 
certified, the Level IV prevailing wage in the area of intended employment for "Software Developers, Applications" was 
$134,659 per year, which is higher than the prevailing wage for "Computer Programmers" which was $108,077 per year. 
See https://flcdatacenter.com/OESWizardStart.aspx. 
21 The Petitioner also adds, "[i]t is imperative to have in depth knowledge and expertise to understand cyber security, 
including how to prevent ransomware attacks through technology and policies, these are typically covered through 
specialized degrees like cyber security." 
22 See Matter of Ho, 19 l&N Dec. 582, 591-92 {BIA 1988). 
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C. Beneficiary's Qualifications 
On appeal, the Petitioner also asserts that the Beneficiary is qualified to perform the duties of the 
position. However, a beneficiary's credentials to perform a particular job are relevant only when the 
job is found to be a specialty occupation.23 As discussed in this decision, the Petitioner has not 
established that the proffered position requires the "theoretical and practical application of a body of 
highly specialized knowledge, and 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." Therefore, we 
need not and will not address the Beneficiary's qualifications farther. 
111. CONCLUSION 
Upon review of the totality of the evidence submitted, the Petitioner has not met the requirements 
described in Section 212(n)(1) of the Act; 20 C.F.R. § 655.731(a) or 8 C.F.R. § 103.2(b)(1). Nor has 
the Petitioner provided sufficient substantive detail regarding the duties the Beneficiary will perform or 
established the minimum degree requirements of the occupation. Therefore, we are unable to determine 
the substantive nature of the work and whether the Beneficiary wi 11 be employed in a position that satisfies 
at least one of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) and an occupation that meets the statutory and 
regulatory definitions of a specialty occupation as defined by section 214(i)(1) of the Act, 8 U.S.C. § 
1184(i)(1), 8 C.F.R. § 214.2(h)(4)(ii), and (iii)(A). In visa petition proceedings, it is the petitioner's 
burden to establish eligibility for the immigration benefit sought.24 The Petitioner has not met that 
burden. 
ORDER: The appeal is dismissed. 
23 Cf. Matter of Michael Hertz Assocs., 19 l&N Dec. 558,560 (Comm'r 1988) ('The facts ofa beneficiary's background 
only come at issue after it is found that the position in which the petitioner intends to employ him falls within [a specialty 
occupation]."). 
24 See section 291 of the Act, 8 U.S.C. § 1361. 
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