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: JUNE 15,2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a 24-employee software development and computer programming services company, 
seeks to temporarily employ the Beneficia~y as a "computer programmer analyst" under the H-1B 
nonimmigrant classification for specialty occupations. See Immigration and Nationality Act (the 
Act) section 101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b). The H-1B 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. 
(J) 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 have consistently 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. Cherto.ff, 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 ofthe Beneficiary's duties: 
Time spen[t] on duti"es- 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 or 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. 
2 
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 or Engineering or Information Science." 
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 
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 sufficient work for the 
requested period of employment.2 In addition, the Director concluded that the evidence reflected 
that the Petitioner did not have sufficient finances to fund the development of its proposed software. 
However, we find that the Petitioner has provided sufficient evidence to demonstrate that the 
Beneficiary will more likely than not be assigned to an internal project developing the company's 
software and that his work will not be driven by immediate client needs pursuant to a contract or 
work order. Further, we decline to· adjudicate whether the Petitioner's finances are sufficient to 
support the development of its software. Therefore, the Director's conclusions as to these issues are 
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.F.R. § 214.2(h)(4)(iii)(A) for the occupation of computer programmer, the 
occupation certified on the labor condition application (LCA).3 
A. First Criterion 
We turn first to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(J), 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.4 
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 code 15-1131.5 
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 The Petitioner is required to submit a certified LCA to USC IS to demonstrate that it will pay an H-1 B 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 experience and qualifications who are performing the same 
services. See Matter of Simeio Solutions, LLC, 26 I&N Dec. 542, 545-546 (AAO 20 15). 
4 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. 
5 The Petitioner classified the proffered position at a Level I wage (the lowest of four assignable wage levels). We will 
consider this selection in our analysis of the position. The "Prevailing Wage Determination Policy Guidance" issued by 
the DOL provides a description of the wage levels. A Levell wage rate is generally appropriate for positions for which 
the Petitioner expects the Beneficiary to have a basic understanding of the occupation. This wage rate indicates: (I) that 
the Beneficiary will be expected to perform routine tasks that require limited, if any, exercise of judgment; (2) that he 
4 
Matter of A-, Inc. 
The subchapter of the Handbook entitled "How to Become a Computer Programmer" states, in 
pertinent part, that "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." Bureau of Labor Statistics, U.S. Dep't of Labor, 
Occupational Outlook Handbook, Computer Programmers, (2016-17 ed.). 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. 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 "Fourl' 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 June 14, 20 17); O*NET OnLine 
Help- Job Zones, http://www.onetonline.org/help/online/zones (last visited June 14, 2017). Further, 
O*NET OnLine does not indicate that four-year bachelor's degrees required 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. 
The Petitioner has not provided sufficient documentation from a probative source to substantiate its 
assertion regarding the minimum baccalaureate degrees in a specific specialty required for entry into 
this particular position. 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 first prong 
will be closely supervised and his work closely monitored and reviewed for accuracy; and (3) that he will receive 
specific instructions on required tasks and expected results. 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 _11_ 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. 
5 
Matter of A-, Inc. 
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. 
We generally consider the following sources of evidence to determine if there is such a common 
degree requirement: 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 establish that such firms "routinely 
employ and recruit only de greed individuals." See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 
(D. Minn. 1999) (quoting Hird/Blaker Corp. v. Sava, 712 F. Supp. 1095,1102 (S.D.N.Y. 1989)) 
(considering these "factors" to inform the commonality of a degree requirement). 
As previously discussed, the Petitioner has not established that its proffered position is one for which 
the Handbook, or another authoritative source, reports a requirement for at least a bachelor's degree 
in a specific specialty, or its equivalent. We incorporate by reference the previous discussion on the 
matter. 
In support of this criteria, the Petitioner provided seven job announcements for positions with other 
companies. However, we are unable to determine that these companies are similar to the Petitioner 
or that the submitted positions are parallel to the proffered position. 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 employees 
working for these companies varies from four to 48.6 Most of the announcements do not indicate the 
industry in which the prospective employer operates, whereas three others operate in dissimilar 
industries such as educational materials, emergency medicine, and sportswear. 
Although some 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 information science or 
engineering, other degrees the Petitioner contends would be sufficient. Further, consistent with the 
Handbook, one job announcement states that an associate's degree and prior experience would 
suffice, while another does not articulate that a bachelor's degree in a specific specialty is required. 
In addition, four of the seven job advertisements require three or more years of experience, unlike 
the proffered position, which is categorized as a Level I wage on the LCA, indicating that it requires 
little or no experience. 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 
6 
The Petitioner indicates in the Form 1-129, Petition for a Nonimmigrant Worker, that it employs 24 individuals. 
\ I 
6 
.
Matter of A-, Inc. 
job advertisements do not establish that organizations similar to the Petitioner routil)ely employ 
individuals with degrees in a specific specialty, in parallel positions in the Petitioner's industry.7 
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 of8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
2. Second Prong 
We will next consider the second alternative prong of 8 C.F.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. 
We have reviewed the position evaluation prepared by Ph.D., an associate professor 
of computer applications and information systems in the School of Business at the 
Dr. paraphrased the Beneficiary's job responsibilities and opines that a bachelor's 
degree in information systems or a related area, or the equivalent, is the minimum requirement to 
perform the duties of the proffered position. We find this evaluation insufficient to establish the 
proffered position is a specialty occupation. Dr. does not demonstrate in-depth knowledge of 
the Petitioner's specific business operations, and what duties the Beneficiary wouJd perform in the 
context of the Petitioner's business. Further, Dr. states that "employers with openings for 
Computer Program Analysts and similar professional positions have recruited on our campus, 
always seeking graduates with the minimum of a Bachelor's Degree" and elsewhere indicates that IT 
services companies typically require that computer programmer analysts hold a "Bachelor's degree 
7 
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 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 error"). 
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. 
7 
.
Matter of A-, Inc. 
in Information Systems." It is noteworthy that these assertions are in direct conflict, first suggesting 
that a bachelor's degree alone is sufficient, and later that a bachelor's degree in information systems 
is required, thereby leaving question as to his assertions. Further, Dr. provides little basis for 
his conclusions. As a matter of discretion, we may use opinion statements submitted by the 
Petitioner as advisory. Matter of Caron lnt'l , Inc., 19 I&N Dec. 791, 795 (Comm'r 
1988). However, we will reject an opinion or give it less weight if it is not in accord with other 
information in the record or if it is in any way questionable. !d. In this instance, Dr. opm10n 
has little probative value in establishing the proffered position as a specialty occupation. 
The Petitioner has designated the proffered position as a Level I 
position on the LCA, indicating that 
the Beneficiary will perform routine tasks that require limited exercise of judgment and that his work 
will be closely supervised, monitored, and reviewed for accuracy. 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 that require a significantly higher 
prevailing wage, as a Level III (experienced) or Level IV (fully competent) wage level.8 
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 
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 his 
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 specific 
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). 
8 The Petitioner 's designation of this position as a Level I, entry-level position undermines its claim that the position is 
particularly complex, unique, and specialized compared to other positions within the same occupation. Nevertheless , a 
Level I wage-designation does not preclude a proffered position from classification as a specialty occupation, just as a 
Level IV wage-designation does not definitively establish such a classification. In certain occupations (e.g., doctors or 
lawyers), a Level I, entry-level position would still require a minimum of a bachelor ' s degree in a specific specialty , or 
its equivalent, for entry. Similarly, however, a Level IV wage-designation would not reflect that an occupation qualifies 
as a specialty occupation if that higher-level position does not have an entry requirement of at least a bachelor's degree 
in a specific specialty , or its equivalent. That is, a position's wage level designation may be a relevant factor but is not 
itself conclusive evidence that a proffered position meets the requirements of section 214(i)( I) of the Act. 
8 
Matter of A-, Inc. 
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. 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 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. !d. 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. 
In response to the Director's RFE, the Petitioner stated that it has five individuals performing 
services in the capacity of a computer programmer analyst. The Petitioner listed their names, 
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. 
However, the submitted organizational chart 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. Absent this evidence, we cannot conclude that 
all of the listed positions are the same as the proffered position. Further, the organizational chart 
reflects that it employs nine computer programmer analysts. In addition, the Petitioner's project plan 
lists positions needed on its software project, including the duties, responsibilities, requirements, 
skills needed for computer analysts, quality assurance analysts, and software engineers. However, 
only the description for software engineers indicates that a bachelor's degree in specific specialty is 
required, in this case, a degree in computer science. 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). In sum, 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 
9 
Matter of A-, Inc. 
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 platfonns 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 I 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). 
IV. CONCLUSION 
Because the Petitioner has not satisfied one of the 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. 
ORDER: The appeal is dismissed. 
Cite as Matter of A-, Inc., ID# 353742 (AAO June 15, 2017) 
10