dismissed H-1B Case: Computer Programming

U.S. Citizenship 
and Immigration 
Services 
In Re: 7536255 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE : MAR. 26, 2020 
The Petitioner, a mobile application development company, seeks to temporarily employ the 
Beneficiary as a "senior programmer" under the H-lB 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)(15)(H)(i)(b). 
The California Service Center Director denied the petition, concluding that the Petitioner had not 
established that the proffered position is a specialty occupation. 
On appeal, the Petitioner asserts that the Director erred and that the proffered position is a specialty 
occupation. 
Upon de nova review, we will dismiss the appeal. 1 
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: 
1A petitioner must establish that it meets each eligibility requirement of the benefit sought by a preponderance of the 
evidence. Matter ofChawathe, 25 I& N Dec. 369, 375-76 (AAO 2010) . 
(I) 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.F.R. § 214.2(h)(4)(iii)(A). 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"); Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
II. THE PROFFERED POSITION 
The Petitioner, a five-person mobile application development company, stated in its H-1 B petition that 
it will utilize the Beneficiary in-house as a "senior programmer." On the labor condition application 
(LCA)2 submitted in support of the H-lB petition, the Petitioner designated the proffered position 
under the occupational category of "Computer Programmers," corresponding to the Standard 
Occupational Classification code 15-1131. 3 We will not describe each duty here, but we have carefully 
considered each one. The Petitioner stated that the minimum qualifications for entry into the position 
are a bachelor's degree computer science or computer engineering, in addition to "knowledge and 
understanding of differing computer and mobile operating systems and code for program 
development." 
2 A petitioner submits the LCA to U.S. Department of Labor to demonstrate that it will pay an H-lB 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. Section 212(n)(l) of the Act; 20 C.F.R. 
§ 655.731(a). 
3 The Petitioner classified the proffered position at a Level II wage. A wage determination starts with an entry-level wage 
(Level I) and progresses to a higher wage level (up to Level IV) after considering the experience, education, and skill 
requirements of the Petitioner's job oppmiunity. U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage 
Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://t1cdatacenter.com/download/NPWHC _Guidance_ Revised_ 11 _ 2009.pdf 
2 
III. ANALYSIS 
The Petitioner has not sufficiently established that the proffered position qualifies as a specialty 
occupation. 4 Specifically, the record does not establish that the job duties require an educational 
background, or its equivalent, commensurate with a specialty occupation. 
A. First Criterion 
The criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(I) 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 will consider the information contained in the U.S. Department of Labor's 
(DOL) Occupational Outlook Handbook (Handbook) regarding the duties and educational 
requirements of the wide variety of occupations that it addresses. 5 As noted above, the Petitioner 
designated the proffered position under the SOC code and title 15-1131, "Computer Programmers." 
The subchapter of the Handbook entitled "How to Become a Computer Programmer" 6 states, in 
relevant part that "[m]ost computer programmers have a bachelor's degree in computer science or a 
related subject; however, some employers hire workers with an associate's degree .... " The 
Handbook also states "[m]ost computer programmers have a bachelor's degree; however, some 
employers hire workers who have other degrees or experience in specific programming languages." 
As such, the Handbook does not state that positions located within the computer programmer 
occupational category normally require a bachelor's degree in a specific field, or the equivalent, for 
entry. Instead, it states that the degree requirements for jobs in this occupation vary by employer, and 
that some employers will hire workers with an associate's degree. 
While the Handbook may establish the first regulatory criterion for certain professions, many 
occupations are not described in such a categorical manner. Here, the Handbook does not describe 
the normal minimum educational requirement for the occupation in a categorical manner since some 
employers accept less than a bachelor's degree. 
On appeal, the Petitioner asserts that the Director has mischaracterized the Handbook and drawn 
incorrect conclusions with regard to the normal minimum requirements for entry into the occupation. 
4 The Petitioner submitted documentation to suppmt 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. 
5 The Handbook may be accessed at https://www.bls.gov. Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational 
Outlook Handbook, Computer Programmers, https://www.bls.gov/ooh/computer-and-information-technology/computer­
programmers.htm#tab-4 (last visited Mar. 26, 2020). We do not, however, maintain that the Handbook is the exclusive 
source of relevant information. 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. Neve1theless, to satisfy the first 
criterion, the burden of proof remains on the Petitioner to submit sufficient evidence to support a finding that its paiticular 
position would normally have a minimum, specialty degree requirement, or its equivalent, for entry. 
6 Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, Computer Programmers, 
http://www.bls.gov/ooh/computer-and-information-technology/computer-programmers.htm (last visited Mar. 26, 2020). 
3 
Moreover, the Petitioner asserts that because the proffered position is classified at a Level II wage, the 
Director should not rely upon general information concerning computer programmers at a Level I 
wage to support a denial of the instant petition. 7 Here, the Petitioner appears to argue that the wage 
level establishes the specialized nature of the position. While wage level designation is a factor to 
consider, a specialty occupation position may nevertheless be at a Level I wage, 8 just as a Level IV 
wage may be attached to a non-specialty occupation position. 9 A petitioner may distinguish its 
proffered position from others within the same occupation through the proper wage level designation 
to indicate factors such as the relative complexity of the job duties, the level of judgment, the amount 
and level of supervision, and the level of understanding required to perform the job duties, but it is not 
itself conclusive evidence that a proffered position meets the requirements of section 2 l 4(i)(l) of the 
Act. Here, as we will discuss later in the decision, the record does not sufficiently establish the duties 
and requirements for the proffered position, which undermines the Petitioner's claims regarding the 
minimum requirement for entry into the particular position. 10 
The Petitioner also cites to language from a 2011 AAO non-precedent decision to assert that petitioners 
have regularly been able to establish before the AAO that a bachelor's degree or higher is a minimum 
entry requirement for computer programmer positions. According to the Petitioner's citation on 
appeal, the AAO decision references "computer scientists," an occupation that has not been 
determined to be the same as the "computer programmer" occupational category. Even if the 
Petitioner properly contextualized the language in that decision, which we are unable to determine as 
the case is not before us presently, it would not absolve the Petitioner of its burden of proof for this 
particular proffered position. Furthermore, we decline to adopt the Petitioner's proposition that the 
language in the citation creates a categorical rule concerning the specialty nature of a particular 
occupation. 
In its response to the Director's request for evidence (RFE), the Petitioner cited to DOL's Occupational 
Information Network (O*NET) summary report for "Computer Programmers" (SOC code 15-
1131.00). The O*NET Summary Report does not establish that a bachelor's degree in a specific 
specialty, or the equivalent, is normally required. It provides general information regarding the 
occupation, but it does not support a conclusion that the proffered position requires a bachelor's degree 
in a specific specialty, or the equivalent. Instead, O*NET assigns these positions a "Job Zone Four" 
rating, which states "most of these occupations require a four-year bachelor's degree, but some do 
not." Moreover, the Job Zone Four designation does not indicate that any academic credentials for 
Job Zone Four occupations must be directly related to the duties performed. 
7 We note that the Director's decision does not reference wage level, nor does it cite the USCTS memo that the Petitioner 
mentions when discussing the Handbook. 
8 Such professions would include for instance surgeons or attorneys, which require at least a bachelor's degree in a specific 
specialty for entry into the occupation. 
9 A non-exhaustive list of examples include janitorial or housekeeping, food preparation and service, and certain 
construction or maintenance positions, which generally do not require any degree. 
10 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, 201 F.3d at 387-88. 
Were we limited solely to reviewing a petitioner's claimed self-imposed requirements, an organization could bring any 
individual with a bachelor's degree to the United States to perform any occupation as long as the petitioning entity created 
a token degree requirement. Id. 
4 
In addition, the specialized vocational preparation (SVP) rating designates this occupation as 7 < 8. 
An SVP rating of 7 to less than ("<") 8 indicates that the occupation requires "over 2 years up to and 
including 4 years" of training. While the SVP rating indicates the total number of years of vocational 
preparation required for a particular position, it is important to note that it does not describe how those 
years are to be divided among training, experience, and formal education. The SVP rating also does 
not specify the particular type of degree, if any, that a position would require. 11 Further, although the 
summary reports provide the educational requirements of"respondents," it does not account for 100% 
of the "respondents." Moreover, the respondents' positions within the occupation are not 
distinguished by career level (e.g., entry-level, mid-level, senior-level). Furthermore, the graph in the 
summary report does not indicate that the "education level" for the respondents must be in a specific 
specialty. For all of these reasons, O*NET does not establish the proffered position as a specialty 
occupation. 
The Petitioner has not provided sufficient 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)(]). 
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 first prong concentrates upon 
the common industry practice, while the alternative prong narrows its focus to the Petitioner's specific 
position. 
1. First Prong 
In determining whether there is such a common degree requirement, sources of evidence we often 
consider include: whether the Handbook ( or another independent, authoritative source) 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." 12 
Here and as already discussed, 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. 
11 For additional information, see the O*NET Online Help webpage available at http://www.onetonline.org/ 
help/online/svp. 
12 See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 (D.Minn. 1999) (quoting Hird/Blaker Co1p. v. Sava, 712 F. Supp. 
1095, 1102 (S.D.N.Y. 1989)( considering these "factors" to inform the commonality of a degree requirement))). 
5 
The Petitioner submitted job vacancy announcements for our consideration under this prong. To be 
relevant for consideration, the job vacancy announcements must advertise "parallel positions," and the 
announcements must have been placed by organizations that (1) conduct business in the Petitioner's 
industry and (2) are also "similar" to the Petitioner. These job vacancy announcements do not satisfy that 
threshold. Upon review of the documents, we conclude that the Petitioner's reliance on the job 
announcements is misplaced. 
We will first consider whether the advertised job opportunities could be considered "parallel positions." 
Some of the job advertisements contain very little information about the duties of the position. For 
example, the Timmons-Corp, Victory Packaging, and V3Main Technologies advertisements include only 
a few short bullet points that describe a general computer-related position. With the little information 
available, no determination can be made as to whether the duties of these positions parallel the duties of 
the proffered position. By contrast, the information provided for other positions suggest a markedly 
different role from the proffered position. For instance, the position advertised by Rice University 
contains duties which focus on data storage and reporting, containing no apparent relation to mobile 
applications work. Finally, some of the positions reference a requirement for specific experience in 
addition to a bachelor's degree, including "2 years working with lptor," "at least 1 year working with 
IBM," and "5+ years of programming experience." As such, the Petitioner has not sufficiently established 
that the primary duties and responsibilities of the advertised positions parallel those of the proffered 
position. 
Nor does the record contain documentary evidence sufficient to establish that these job vacancy 
announcements were placed by companies that (1) conduct business in the Petitioner's industry and (2) 
are also "similar" to the Petitioner. When determining whether the employer posting a job listing and the 
Petitioner share the same general characteristics, factors to be considered may include information 
regarding the nature or type of organization and, when pertinent, the particular scope of operations, as 
well as the level of revenue and staffing. Here, the Petitioner is a five-employee mobile application 
company, whereas some of the employers who placed the advertisements include large universities, a 
packaging company, and a Fortune 500 company. We reviewed the table the Petitioner created for side­
by-side comparison, however, the table contains insufficient details and evidence to establish the requisite 
similarity. 
For all of these reasons, the Petitioner has not established that these job vacancy announcements are 
relevant. As the documentation does not establish that the Petitioner has met this prong of the regulations, 
further analysis regarding the specific information contained in each of the job postings is not 
necessary. 13 That is, not every deficit of every piece of evidence has been addressed. 14 
13 The Petitioner did not provide any independent evidence of how representative the job postings are of the particular 
advertising employers' recruiting history for the type of job advertised. As the advertisements are only solicitations for 
hire, they are not evidence of the actual hiring practices of these employers. 
14 Even if all of the job postings indicated that a requirement of a bachelor's degree in a specific specialty is common to 
the industry in parallel positions among similar organizations (which they do not), the Petitioner has not demonstrated 
what statistically valid inferences, if any, can be drawn from the advertisements with regard to determining the common 
educational requirements for entry into parallel positions in similar organizations. See generally Earl Babbie, The Practice 
of Social Research 186-228 (1995). Moreover, given that there is no indication that the advertisements were randomly 
selected, the validity of any such inferences could not be accurately determined even if the sampling unit were sufficiently 
6 
In support of its assertion that the degree requirement is common to the Petitioner's industry, the Petitioner 
also submitted a letter from ChaiOne, Inc. The Petitioner offers little information concerning this 
company so that we might determine whether it operates within the Petitioner's industry or whether its 
author is qualified to make pronouncements as to an industry-wide standard. Even setting this aside, the 
letter states that it is the company's practice to "require at least a four-year bachelor's degree or higher 
for even our entry level" computer programmer positions. As previously noted, simply requiring a 
bachelor's degree without further specification is insufficient to establish that a position qualifies as a 
specialty occupation.15 Furthermore, without corroborating evidence to establish an actual routine in 
hiring, general statements submitted at the behest of the Petitioner offer little probative value. Even 
if such additional evidence were submitted, a single letter from an organization that may or may not 
be similar to the Petitioner, would not establish an industry standard that a bachelor's degree in a 
specific specialty, or its equivalent, is the minimum entry requirement for a computer programmer 
position. 
The Petitioner has not provided sufficient probative evidence to establish that a bachelor's degree in a 
specific specialty, or its equivalent, is common to the industry in parallel positions among similar 
organizations. Thus, the Petitioner has not satisfied the first alternative prong of 8 C.F.R. 
§ 2 l 4.2(h)( 4)(iii)(A)(2). 
2. Second Prong 
The second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) 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. 
Upon review of the totality of the record, the Petitioner has not sufficiently explained or documented 
why the proffered position is so complex or unique that a bachelor's degree in a specific specialty is 
required. A crucial aspect of this matter is whether the Petitioner has submitted sufficient and 
consistent evidence describing the proffered position such that we may discern the nature of the 
position. 16 
The Petitioner filed this petition in April 2018 and requested that it be approved for a three-year period 
of time from October 2018 through September 2021. The record contains proposals for work with 
potential clients, but the record does not contain sufficient evidence to establish contractual 
agreements for services that the Beneficiary will perform for the employment period requested. 
Furthermore, though the Petitioner submitted a nine-item list of duties with its initial filing, the vague 
descriptions of the duties inhibit our understanding of the Beneficiary's activities on a day-to-day 
large. See id. at 195-196 ( explaining that "[r ]andom selection is the key to [the] process [ of probability sampling]" and 
that "random selection offers access to the body of probability theory, which provides the basis for estimates of population 
parameters and estimates of enor"). 
15 Royal Siam Corp., 484 F.3d at 147. 
16 The Petitioner states that the Beneficiary will be a "Senior Programmer," however on appeal, the Petitioner refers to the 
Beneficiary's role as a "Senior Computer Programmer." Though the titles appear similar, we have no information as to 
whether these two differently titled positions have the same or similar duties. This adds a layer of uncertainty to the 
substantive nature of the proffered position. 
7 
basis. For instance, duty eight includes "[e]ngage with specific tasks that have a direct application, 
such as designing accounting procedures, utility programs, productivity tools on smart-phones like 
iPhone and Android." Other duties listed state that the Beneficiary will "help[] to define the vision, 
definition and strategy for the development team by driving project initiatives that deliver on [the 
Petitioner's] vision." Such a broad overview of the Beneficiary's role as a whole provides us little 
insight into how the Beneficiary will carry out such responsibilities. As described, we do not know 
what the Beneficiary will actually do to complete these undefined tasks. In addition to this, the 
Petitioner emphasized that in its organization, "team members are required to have a higher level of 
proficiency than you would find in an average development shop ... because each team member ... 
must operate on their own with little to no training in a highly scientific environment where the 
individual is working with technologies that are new to the industry and to the world," however, the 
Petitioner has not provided sufficient evidence to substantiate these claims. 
Aside from the nebulous descriptions of many of the duties, other duties appear to align with 
information found in O*NET for positions located within the occupational category of computer 
programmers. As described, the duties of the proffered position do not exhibit any uniqueness or 
complexity beyond the typical O*NET duties, but rather appear to largely match the generic duties of 
positions falling within the computer programmer occupational category. While duties articulated in 
such a general manner provide information about the range of work the Beneficiary might perform in 
the position, such generalities do not help us understand how the particular position is so complex or 
unique that it can be performed only by an individual with a bachelor's degree in a specific specialty 
or its equivalent. 
In its RFE response, the Petitioner provided additional information concerning the proffered position, 
however, the information failed to contain any specific examples or descriptions of the duties as they 
would be performed within the context of the Petitioner's business. Rather, the Petitioner once again 
described a general computer-related position without relating any of the work to the specific projects 
or clients that will occupy the Beneficiary's time. In place of providing this additional detail, the 
Petitioner listed technologies that the Beneficiary will use, many of which are technologies that 
O*NET states are typical of computer programmer positions. To the extent that we understand the 
nature of the position, we conclude that it is not so complex or unique that it requires a bachelor's 
degree or higher in a specific specialty to perform. 
In addition to this, the Petitioner appears to have materially altered the nature of the proffered position 
between the initial filing and the RFE response. The Petitioner states in its RFE response and on 
appeal that "65% of the [the Beneficiary's] time will be spent on actual software engineering and 
design, focused on object-oriented analysis, design, and algorithms." Such work did not appear in the 
duties listed in the original filing of the petition and would appear to be more appropriately categorized 
as a duty falling within a "software engineer" or "software developer" position, rather than a typical 
computer programmer position. 17 While a petitioner certainly may add additional detail to describe a 
17 We further note that if the proffered position has requirements described in a combination of O*NET occupations. the 
Petitioner should have selected the occupational category with the highest prevailing wage, which in this case is "software 
developers, applications." See https://flcdatacenter.com/OesQuickResults.aspx?code=l 5-1132&area=~year=l 8 
&source=! (last visited Mar. 26, 2020). Furthermore, this also raises questions as to whether the LCA conesponds to the 
petition. 20 C.F.R. § 655.705(6). 
8 
duty, adding significantly different or additional duties constitutes a material change in the petition. It 
is well established that a petitioner may not make material changes to a petition in an effort to make a 
deficient petition conform to USCIS requirements. 18 In order for a petitioner to comply with 8 C.F.R. 
§ 103.2(b)(l) and USCIS to perform its regulatory duties under 20 C.F.R. § 655.705(b), a petitioner 
must file an amended or new petition, along with a new LCA certified by DOL, in order to capture 
any material changes in terms or conditions of employment or the beneficiary's eligibility. 
As alternative evidence for our consideration under this and the other criteria, on appeal, the Petitioner 
submits an opinion letter form Research Professor at the University of I I I I Though ~-------~ states that he visited the Petitioner's work site, he offers no 
analysis of the duties that comprise the proffered position. Instead, he declares that the position requires 
a bachelor's degree in computer science or its equivalent without explaining why or how he arrived at 
such a conclusion. He lists some of the Petitioner's clientele and appears to conclude that because the 
Petitioner's work is important and is at the "forefront of innovation" that it necessitates a bachelor's 
degree in computer science. While a relevant consideration, neither the importance of the work and the 
clients, nor the proffered position's role within it, can substitute for specialization. Here, I I I I has not sufficiently substantiated his claims as to the level of innovation and the 
importance of the work, nor has he connected that to the need for a bachelor's degree in computer 
science. 
While we will review the opinion presented, it has little probative value as it does not include specific 
analysis of the duties of the particular position that is the subject of this petition. 19 We may, in our 
discretion, use opinion statements submitted by the Petitioner as advisory. 20 However, where an 
opinion is not in accord with other information or is in any way questionable, we are not required to 
accept or may give less weight to that evidence. 21 Here, the opinion presented does not offer a cogent 
analysis of the duties and why the duties require a bachelor's degree in a specific specialty. 
The Petitioner claims that the Beneficiary is well-qualified for the position and references the 
Beneficiary's qualifications. 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. 22 The lack of underlying consistent and 
probative evidence to establish the specific projects or tasks the Beneficiary will work on, as well as 
the nature of the position and how it might best be characterized in terms of occupational category and 
wage level, raise doubts as to the credibility of the overall petition. 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 
18 See Matter of lzummi, 22 l&N Dec. 169, 176 (Assoc. Comm'r 1998). 
19 We hereby incorporate our discussion of.__ _______ __,., opinion into our discussion of the other 8 C.F.R. ~ 
214.2(h)(4)(iii)(A) criteria. 
20 Matter of Caron Int'/, Inc., 19 T&N Dec. 791, 795 (Comm'r 1988). 
21 Id. 
22 We are required to follow long-standing legal standards and determine first, whether the proffered position qualifies for 
classification as a specialty occupation, and second, whether a beneficiary was qualified for the position at the time the 
nonimmigrant visa petition was filed. Cf Matter of Michael Hertz As.socs., 19 I&N Dec. 558, 560 (Comm'r 1988) ("The 
facts of a 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]."). 
9 
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. 
As noted, 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. 23 Were U.S. Citizenship and Immigration Services (USCIS) limited solely to reviewing the 
Petitioner's claimed self-imposed requirements, then 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. 24 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. 
The Petitioner submitted a "Computer/Software Programmer" position description for which "[a] degree 
in Computer Science and/or related fields" is a stated qualification. Initially we note that the description 
does not require a bachelor's degree, but simply a degree, which could be construed as an associate' s 
level degree. Additionally, the position description includes five brief bullet points of very general 
responsibilities including "working in an adaptable environment where you continuously strive to be 
more effective." Not only does this responsibility appear to be more of a personality trait, it also does not 
illuminate what the position entails. The position description contains similar generalized responsibilities 
in the other bulleted points. As such, the Petitioner submitted insufficient information to establish that 
this position is representative of the proffered position as the stated duties are too general to be meaningful 
and the title of the position is different from the proffered position. In addition to the reasons stated above, 
we are unable to determine if this position description is a job advertisement because it contains no 
information on where or when it was posted. Therefore, this document provides insufficient evidence of 
recruiting history. 
Along with this position description are two resumes of employees that the Petitioner contends occupied 
the proffered position in the past. The Petitioner submitted a copy of a diploma and an employment offer 
letter for one of the referenced employees, but not the other. We infer that the Petitioner wishes to 
demonstrate that its employees who have held the position in the past have specialized degrees, however 
as previously noted, the Petitioner failed to submit evidence of at least a bachelor's degree education in a 
specific specialty or its equivalent for one of the two referenced employees. Moreover, neither of the 
resumes state that the employees held the proffered position in the past. In addition, the Petitioner did not 
provide the total number of people it has employed in the past to serve in the proffered position, though 
it has been in business since 2010. We conclude that a single offer letter for one specialty-degreed 
23 See Defensor, 201 F.3d at 387-88. 
24 Id. 
10 
employee in a position that may or may not be the same as the proffered position hardly establishes a 
hiring history. 
Consequently, no determination can be made about the Petitioner's normal recruiting and hiring practices 
for the proffered position. The Petitioner has not persuasively established that it normally requires at least 
a bachelor's degree in a specific specialty, or its equivalent, for the proffered position. Thus, 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. 
As the duties have been described in vague and general terms, with little reference to the context of 
any specific projects or the Petitioner's clientele, we are unable to discern the actual, substantive nature 
of the position. We acknowledge the example work product printouts as well as the promotional 
materials and press releases concerning the Petitioner's business. However, none of these documents 
contain references to the Beneficiary's specific work product or information concerning the proffered 
position's role in the projects. 
For the same reasons we discussed under the second prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2), we 
conclude that the Petitioner has not established 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). We incorporate our earlier 
discussion and analysis on this matter. 
IV. CONCLUSION 
The Petitioner has not satisfied one of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A); therefore, it has 
not demonstrated that the proffered position qualifies as a specialty occupation. 
In visa petition proceedings, it is a 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. 
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