dismissed H-1B Case: Computer Programming

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
PUBLIC COPY 
 -- 
FILE: EAC 04 190 50878 Office: VERMONT SERVICE CENTER 
 Date: APR 1 2 200tj 
IN RE: Petitioner: 
Beneficiary: 
PETITION: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(l 5)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 5 1 lOl(a)(lS)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision in your case. All documents have been returned to the office that originally decided your 
case. Any further inquiry must be made to that office. 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
EAC 04 190 50878 
Page 2 
DISCUSSION: The service center director denied the nonimrnigrant visa petition and the matter is now before 
the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. The petition will be denied. 
The petitioner is an information technology consulting firm that seeks to employ the beneficiary as a computer 
programmer. It endeavors to classify him as a nonimrnigrant worker in a specialty occupation pursuant to section 
lOl(a)(lS)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. $ 1 lOl(a)(lS)(H)(i)(b). 
The director denied the petition because the beneficiary did not qualify to perform the duties of a specialty 
occupation. On appeal, counsel submits a brief and additional information stating that the beneficiary qualifies to 
perform the duties of a specialty occupation. 
The director's determination denying the Form 1-129 petition was based solely on the beneficiary's 
qualifications to perform the duties associated with that occupation. The only issue to be discussed in this 
proceeding is whether the beneficiary is qualified to perform the duties of a specialty occupation. 
Section lOl(a)(lS)(H)(i)(b) of the Act, 8 U.S.C. llOl(a)(lS)(H)(i)(b), provides, in part, for the 
classification of qualified nonimmigrant aliens who are coming temporarily to the United States to perform 
services in a specialty occupation. 
Section 214(i)(2) of the Act, 8 U.S.C. 5 1184(i)(2), states that an alien applying for classification as an H-1B 
nonimmigrant worker must possess: 
(A) full state licensure to practice in the occupation, if such licensure is required to 
practice in the occupation, 
(B) completion of the degree described in paragraph (1)(B) for the occupation, or 
(C) 
 (i) experience in the specialty equivalent to the completion of such degree, and 
(ii) recognition of expertise in the specialty through progressively responsible 
positions relating to the specialty. 
Pursuant to 8 C.F.R. 5 214.2(h)(4)(iii)(C), to qualify to perform services in a specialty occupation, the alien 
must meet one of the following criteria: 
(I) Hold a United States baccalaureate or higher degree required by the specialty occupation 
from an accredited college or university; 
(2) Hold a foreign degree determined to be equivalent to a United States baccalaureate or 
higher degree required by the specialty occupation from an accredited college or 
university; 
(3) Hold an unrestricted State license, registration or certification which authorizes him or 
her to fully practice the specialty occupation and be immediately engaged in that 
specialty in the state of intended employment; or 
(4) Have education, specialized training, andfor progressively responsible experience that is 
equivalent to completion of a United States baccalaureate or higher degree in the 
EAC 04 190 50878 
Page 3 
specialty occupation, and have recognition of expertise in the specialty through 
progressively responsible positions directly related to the specialty. 
Pursuant to 8 C.F.R. 5 214.2(h)(4)(iii)(D), for purposes of paragraph (h)(4)(iii)(C)(4) of this section, 
equivalence to completion of a United States baccalaureate or higher degree shall mean achievement of a 
level of knowledge, competence, and practice in the specialty occupation that has been determined to be equal 
to that of an individual who has a baccalaureate or higher degree in the specialty and shall be determined by 
one or more of the following: 
(I) An evaluation from an official who has authority to grant college-level credit for 
training and/or experience in the specialty at an accredited college or university which 
has a program for granting such credit based on an individual's training and/or work 
experience; 
(2) The results of recognized college-level equivalency examinations or special credit 
programs, such as the College Level Examination Program (CLEP), or Program on 
Noncollegiate Sponsored Instruction (PONSI); 
(3) An evaluation of education by a reliable credentials evaluation service which specializes 
in evaluating foreign educational credentials; 
(4) Evidence of certification or registration from a nationally-recognized professional 
association or society for the specialty that is known to grant certification or 
registration to persons in the occupational specialty who have achieved a certain level 
of competence in the specialty; 
(5) A determination by the Service that the equivalent of the degree required by the 
specialty occupation has been acquired through a combination of education, specialized 
training, and/or work expenence in areas related to the specialty and that the alien has 
achieved recognition of expertise in the specialty occupation as a result of such training 
and experience. 
The offered position is that of a computer programmer. For programmer positions that require a bachelor's 
degree, many employers seek applicants who have a degree in computer science, information science, or 
management information systems (MIS). 
The petitioner submitted an evaluation of the petitioner's foreign education from a credentials evaluation 
service as authorized by 8 C.F.R. 5 214.2(h)(4)(iii)(D)(3). That evaluation found the beneficiary's foreign 
education to be equivalent to a bachelor's degree in business administration from an accredited college or 
university in the United States. That degree is not closely related to degrees in computer science, information 
science or MIS which would qualify the beneficiary to work in the offered specialty occupation. The 
beneficiary's transcripts reflect that he took one course in a computer related field. A degree in business 
administration alone is insufficient to qualify the beneficiary to perform the services of a specialty occupation, 
unless the academic courses pursued and knowledge gained is a realistic prerequisite to a particular 
occupation in the field. The beneficiary's coursework must indicate that he or she obtained knowledge of the 
particular occupation in which he or she will be employed. Matter ofling, 13 I&N Dec. 35 (Reg. Comm. 
1968). 
The petitioner did not submit an evaluation of the beneficiary's past education and work expenence by an 
EAC 04 190 50878 
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individual who has authority to evaluate training and/or experience under 8 C.F.R. 8 214.2(h)(4)(iii)(D)(I). 
Citizenship and Immigration Services (CIS), may itself determine whether the beneficiary is qualified to 
perform the duties of the specialty occupation. That determination may be made pursuant to 8 C.F.R. 8 214.2 
(h)(4)(iii)(D)(S), which provides: 
For purposes of determining equivalency to a baccalaureate degree in the specialty, three 
years of specialized training and/or work experience must be demonstrated for each year of 
college-level training the alien lacks. For equivalence to an advanced (or Masters) degree, 
the alien must have a baccalaureate degree followed by at least five years of experience in the 
specialty. . . . It must be clearly demonstrated that the alien's training and/or work experience 
included the theoretical and practical application of specialized knowledge required by the 
specialty occupation; that the alien's experience was gained while working with peers, 
supervisors, or subordinates who have a degree or its equivalent in the specialty occupation; 
and that the alien has recognition of expertise in the specialty evidenced by at least one type 
of documentation such as: 
(i) Recognition of expertise in the specialty occupation by at least two recognized 
authorities in the same specialty occupation; 
(ii) Membership in a recognized foreign or United States association or society in the 
specialty occupation; 
(iii) Published material by or about the alien in professional publications, trade 
journals, books or major newspapers; 
(iv) Licensure or registration to practice the specialty occupation in a foreign country; 
or 
(v) Achievements which a recognized authority has determined to be significant 
contributions to the field of the specialty occupation. 
The documentation recounting the beneficiary's work experience does not establish that the beneficiary's 
experience included the theoretical and practical application of a body of highly specialized knowledge, that it 
was gained while working with peers, supervisors, or subordinates who have a degree or its equivalent in the 
specialty occupation, or that the beneficiary has recognition of expertise in the specialty. CIS cannot, 
therefore, determine that the beneficiary is qualified to perform the duties of the specialty occupation. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. tj 1361. 
The petitioner has failed to sustain that burden and the appeal shall accordingly be dismissed. 
ORDER: The appeal is dismissed. The petition is denied.