dismissed H-1B Case: Computer Science

U.S. Citizenship 
and Immigration 
Services 
In Re: 9316631 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: SEPT. 21, 2020 
The Petitioner, a legal services provider, seeks to temporarily employ the Beneficiary under the H-lB 
nonimmigrant classification for specialty occupations. See Immigration and Nationality Act (the Act) 
section 101(a)(15)(H)(i)(b), 8 U.S.C. § l 10l(a)(l5)(H)(i)(b). The H-lB program allows a U.S. 
employer to temporarily employ a qualified foreign worker in a position that requires both: (a) the 
theoretical and practical application of a body of highly specialized knowledge; and (b) the attainment 
of a bachelor's or higher degree in the specific specialty ( or its equivalent) as a minimum prerequisite 
for entry into the position. 
The Vermont 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 in denying the petition, and contends that the petition should be approved. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Section 291 of the Act; Matter of Chawathe, 25 I&N Dec . 369, 375 (AAO 2010) . We review the 
questions in this matter de nova. See Matter of Christo 's Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). 
Upon de nova review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
Section 101(a)(l5)(H)(i)(b) of the Act defines an H-lB 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)(l) ... " (emphasis added). Section 214(i)(l) of the Act, 8 U.S.C. § l 184(i)(l), defines the 
term "specia lty 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)(l) 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. 1 Lastly, 
1 8 C.F.R. § 214.2(h)(4)(iii)(A) must be read with the statutory and regulatory definitions ofa specialty occupation under 
section 214(i)(l) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). We construe the te1m "degree" to mean not just any 
8 C.F.R. § 214.2(h)(4)(i)(A)(l) states that an H-lB classification may be granted to a foreign national 
who "will pe1:form 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. 
§ 2 l 4.2(h)( 4 )(iii)(A). The services the Beneficiary will perform in the position determine: ( 1) the nmmal 
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 nmmally 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 C.F.R. § 214.2(h)(4)(iii)(A). 
By regulation, the Director is charged with dete1mining whether the petition involves a specialty 
occupation as defined in section 214(i)(l) of the Act. 8 C.F.R. § 214.2(h)(4)(i)(B)(2). The Director 
may request additional evidence in the course of making this determination. 8 C.F.R. § 103.2(b)(8). 
In addition, a petitioner must establish eligibility at the time of filing the petition and must continue to 
be eligible through adjudication. 8 C.F.R. § 103.2(b)(l). 
II. ANALYSIS 
For the reasons set out below, we dete1mine that the proffered position does not qualify as a specialty 
occupation. Specifically, the record provides inconsistent and insufficient information regarding the 
proffered position, which in tum precludes us from understanding the position's substantive nature 
and determining whether the proffered position qualifies as a specialty occupation. 2 
When determining whether a position is a specialty occupation, we look at the nature of the business 
offering the employment and the description of the specific duties of the position as it relates to the 
perf mmance of those duties within the context of that particular employer's business operations. The 
Petitioner is a seven-attorney law practice which focuses on criminal defense, immigration, and family 
law, serving the Spanish-speaking community in Texas. The Petitioner indicates that the Beneficiary 
baccalaureate or higher degree. but one in a specific specialty that is directly related to the proposed position. See Royal 
Siam Corp. v. Clzertoff, 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"). 
2 The Petitioner submitted documentation to support the H-1B 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. 
2 
will be employed as a "systems administrator." 3 On the labor condition application (LCA)4 submitted 
in support of the H- lB petition, the Petitioner designates the proffered position under the occupational 
category "Network and Computer Systems Administrators," corresponding to the Standard Occupational 
Classification (SOC) code 15-1142, with a level II wage. The Petitioner provides various descriptions 
of the duties of the proffered position. For the sake of brevity, we will not quote all of the descriptions 
in full; however, we note that we have closely reviewed and considered the duties. For instance, it 
initially provided a bulleted list of 12 job tasks, as follows (verbatim): 
1. Maintain and administer computer networks including computer hardware, systems 
and applications software and all configurations. 
2. Install all network hardware and software and make needed upgrades and repairs. 
3. Add users to network and assign and update security permissions on the network. 
4. Monitor systems performance to ensure network availability for all systems users 
and to identify potential issues. 
5. Diagnose, troubleshoot, and resolve hardware, software, and other network issues. 
6. Plan, implement and maintain network and system security to ensure protection of 
confidential data across network. 
7. Configure, monitor and maintain email applications and virus protection software. 
8. Perform data backups and disaster recovery. 
9. Monitor email and data storage networks to ensure they are functioning properly. 
10. Monitor website performance to ensure it is functioning properly and resolve issues 
identified. 
11. Train users on software and hardware use. 
12. Address system issues raised by users. 
The Petitioner's initially provided job duty list quoted verbatim from DO L's Occupational Information 
Network (O*NET) summary report for "Network and Computer Systems Administrators" for job 
duties numbered one, seven, and eight above, and paraphrased the O*NET summary report job tasks 
for job duties five, six, eleven, and twelve. 5 It also quoted verbatim job duty number three from the 
Department of Labor's (DOL) Occupational Outlook Handbook (Handbook) subchapter for this 
occupation. 6 The Director observed as much in her request for evidence (RFE), noting the submission 
of duties verbatim from O*NET and the Handbook are insufficient to describe the actual duties of the 
position. We agree. 
3 The Petitioner most recently employed the Beneficiary as an H-IB nonimmigrant. The Petitioner seeks an extension of 
her H-IB status within this petition. See Immigration and Nationality Act (the Act) section 101 (a)(l 5)(H)(i)(b ), 8 U.S.C. 
§ I I0l(a)(l5)(H)(i)(b). 
4 The Petitioner is required to submit a certified LCA to U.S. Citizenship and Immigration Services (USCIS) to demonstrate 
that it will pay the Beneficiary 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. Section 2 l 2(n)(l) of the Act; 20 C.F.R. § 655.73 l(a). 
5 The O*NET summaiy report for "Network and Computer Systems Administrators," may be viewed at 
https:/ /www.onetonline.org /link/summary/15-1142 (last visited Sep. 18, 2020). 
6 All of our references to the Handbook may be accessed at the Internet site http://www.bls.gov/ooh/. We do not 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 vaiiety of occupations that it 
addresses. 
3 
When discussing H-IB employment, the Petitioner's job description must be comprehensive enough 
to properly ascertain the minimum educational requirements necessary to perform those duties. We 
conclude that the Petitioner's reliance on the O*NET summary report and the Handbook's subchapter 
for the "Network and Computer Systems Administrators" occupational category, which provides 
general information about the occupation, as the basis to establish the substantive nature of the duties 
of the proffered position is misplaced. While such materials identify generic job tasks that are 
typically performed by individuals working within the "Network and Computer Systems 
Administrators" occupational category, they do not give context to the specific tasks that the 
Beneficiary will perform within the Petitioner's business operations. Here, the Petitioner's initial 
submission did not provide sufficient detail regarding the work these duties will entail, and how these 
tasks merit recognition of the proffered position as a specialty occupation. 
In response to the Director's request for evidence (RFE), the Petitioner submits an updated job 
description for the proffered position which puts forth job functions with the percentage of time 
devoted to each job functions with underlying job duties that substantially differ in scope from the 
generically described descriptions provided with the petition. The updated job description is as 
follows, in pertinent part: 
Requirements Gathering & Analysis (30%) 
• [] Analysis integration of computer systems for current and new work processes. 
• Study of macro and microenvironments to identify the strength, weakness, 
opportunity and thread of the business. 
• Establish communication with professionals from other disciplines to identify 
information problems, understand them and transfer them to a computer structure. 
• Perform cost-benefit analysis on projects .... 
Research, Development and Implementation ( 40%) 
• 
• 
• 
• 
• 
• 
Administration and implementation of computer systems to communicate and 
connect offices between other countries and ensuring data security. 
Management and administration of technology projects . 
Analyze and be the main contact to handle agreements with IT vendors . 
Responsible for firm's new systems implementation . 
Develop new templates in the firm's law practice management software utilizing 
database programming, such as CRM, SQL, and Microsoft Access. 
Align processes for reporting lead generation activity, outcome and linkage to new 
opportunity creation ... 
Network Structures ( I 0%) 
• Generate new ideas for implementation and connection of new offices in different 
locations (worldwide). 
• Identify new technological opportunities to open new business in other locations 
and countries. 
• Build up country based databases of target accounts between primarily the USA 
and Mexico. 
4 
Customer Support (10%) 
• [] Provide technical support to users. 
• Gather requirements from employees to develop process improvements with the 
help of technology. 
• Virtually connect with employees to configure, train or resolve computer problems. 
• Collaborate with attorneys to maintain good client-attorney relationship through 
records generated in the SQL database and alternative information transmissions. 
• Perform audit functions of information systems and administrative IT and Business. 
Training and Communication (10%) 
• Provide training to users to use data extraction systems for easy understanding of 
information and decision making for manager and paiiners at the firm. 
• Establish training strategies and generate the necessary documents to train 
employees in each department. ... 
Considering the Petitioner's new job tasks and the additional narrative it presents after the filing of the 
petition, we conclude that the Petitioner offers a new position in its response to the Director's RFE, 
which substantively differs from the position it initially put forth. The Petitioner's evidence submitted 
in the RFE response and on appeal indicates that the duties of the position will focus in small part on 
the typical system administration tasks that were generically alluded to in the Petitioner's initial 
submission, but will largely involve performing software application and system development tasks 
that are not in keeping with the position's initially submitted job tasks. 
For instance, the Petitioner did not initially mention that the Beneficiary would be engaged in any 
system development projects, but later in its RFE response asserts that the Beneficiaiy will spend 30% 
of her time on computer system "[r]equirements [g]athering & [a]nalysis" tasks, and 40% of her time 
on ''[r]esearch, [d]evelopment and [i]mplementation" tasks. On appeal, the Petitioner maintains that 
the Beneficiary will pay "a vital role in defining, analyzing and translating business requirements into 
detailed technical requirements," and "will work closely with [a] senior information system 
administrator to ensure the company successfully adopts new technologies and adapts or improves 
current technologies while assessing system models and data security considerations." 7 We 
acknowledge that the Petitioner's initial job description indicates that she will "[p ]lan, implement and 
maintain network and system security to ensure protection of confidential data across [the] network," 
but considering the initially submitted generic job tasks we determine that they do not specify that she 
will be engaged in project management tasks, or that she will gather and analyze requirements for new 
software development projects as the Petitioner maintains in its RFE response and on appeal. The 
Petitioner must resolve these inconsistencies and ambiguities in the record with independent, objective 
evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
7 According to the Petitioner's organization charts, it does not employ any individuals in a position bearing the job title 
"senior system administrator." The Petitioner also states that the Beneficiary will be supervised by someone bearing the 
"senior information systems coordinator" job title, which is another position not mentioned within the organization charts. 
The organization charts reflect that the Petitioner employs three system administrators, to include the Beneficiary, another 
individual, and a person whose job title also states that he is a "contractor." The Petitioner does not discuss the varying 
levels of the systems administrator positions, if any, within the Petitioner's business operations and to which level the 
Beneficiary's proposed duties conespond. The Petitioner must resolve these inconsistencies and ambiguities in the record 
with independent, objective evidence pointing to where the truth lies. Matter of Ho, 19 l&N Dec. 582, 591-92 (BIA 1988). 
5 
Moreover, the Petitioner further claims on appeal that the proffered position requires "[ e ]xcellent 
project management skills; able to deliver projects with consistent high quality on time and within 
budget," "[d]emonstrated business acumen, understanding of organizational strategy, and successful 
experience managing all aspects of cross business [communications]," and "a strong understanding of 
[] finances, [h]uman [r]esources, [o]ffice [a]dministration, [p]roject managing, legal principles, 
[p ]rocess management, and [p ]lantation." Such skill sets appear to be inconsistent with those typically 
required of a systems administrator. 8 Id. 
In response to an RFE or on appeal, the Petitioner cannot offer a new position to the Beneficiary, or 
materially change a position's title, its level of authority within the organizational hierarchy, the 
associated job responsibilities, or the requirements of the position. The Petitioner must establish that 
the position offered to the Beneficiary when the petition was filed merits classification for the benefit 
sought. See Matter of Michelin Tire Corp., 17 I&N Dec. 248,249 (Reg'l Comm'r 1978). A petitioner 
may not make material changes to a petition in an effort to make a deficient petition conform to USCIS 
requirements. See Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm'r 1998). 
We conclude that the record lacks sufficient, consistent, credible documentation about the substantive 
nature of the Beneficiary's role within the Petitioner's business operations, in order for us to discern 
the scope and complexity of the work the Beneficiary will be performing for the end-client, and the 
associated application of specialized know ledge that their perfmmance will require. It is the Petitioner's 
burden to prove by a preponderance of evidence that it is qualified for the benefit sought. Matter of 
Chawathe, 25 I&N Dec. at 376. In evaluating the evidence, eligibility is to be determined not by the 
quantity of evidence alone but by its quality. Id. Here, the documentation provided is not probative 
towards establishing the substantive nature of the job tasks that encompass the Beneficiary's work 
assignment with the Petitioner. As a result, the record does not demonstrate that any work that may be 
available within the Petitioner's job opportunity will be H-lB caliber work. For the aforementioned 
reasons, the Petitioner has not established that the proffered position is a specialty occupation, and 
therefore the petition may not be approved. 
The Petitioner also provides inconsistent statements for the proffered position's requirements. 9 At 
first, it specifies "a Bachelor's degree in Computer Science" is required for the position. Later, in its 
RFE response, it asserts the position requires "at least a Bachelor's degree in Information Systems 
Administration, along with a minimum of 5 years of experience on various projects implementing 
worldwide IT projects." 10 It does not give any explanation for these differing position requirements. 11 
8 We take note of the Office of Foreign Labor Ce1iification's Frequently Asked Questions and Answers which provide 
guidance associated with skills that are atypical to an occupation stating: "Any required skills in addition to those listed 
in O*NET are considered atypical for the occupation and ... will raise the wage level by one level either because it 
contains a combination of occupations or because it contains job requirements not normal to the occupation." Such atypical 
job requirements would likely require an increase in the wage level on the LCA. See Office of Foreign Labor Certification 
Frequently Asked Questions and Answers, https://www.foreignlaborcert.doleta.gov/faqsanswers.cfm (last visited Sep. 18, 
2020). 
9 These inconsistencies also raise significant questions as to whether the LCA corresponds to and supports the H-lB 
petition, as required. and appear to constitute an additional reason this petition cannot be approved. See 20 C.F.R. § 
655.705(6). 
10 USCIS may not approve a visa petition at a future date after a petitioner or a beneficiary becomes eligible under a new 
set of facts. Matter of Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg'l Comm'r 1978). 
11 Matter of Ho, 19 I&N Dec. at 591-92. 
6 
Moreover, the evidence in the record suggests that the LCA may not properly correspond with the 
petition. The purpose of the LCA wage requirement is "to protect U.S. workers' wages and eliminate 
any economic incentive or advantage in hiring temporary foreign workers." 12 It also serves to protect 
H-lB workers from wage abuses. A petitioner submits the LCA to the Department of Labor (DOL) 
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 duties, experience, and qualifications. Section 212(n)(l) of the Act; 20 C.F.R. 
§ 655. 731 (a). While DOL certifies the LCA, U.S. Citizenship and Immigration Services (USCIS) 
determines whether the LCA's content corresponds with the H-lB petition. See 20 C.F.R. 
§ 655. 705(b) ("DHS determines whether the petition is supported by an LCA which corresponds with 
the petition, .... "). When assessing the wage level indicated on the LCA, USCIS does not purport to 
supplant DOL's responsibility with respect to wage determinations. There may be some overlap in 
considerations, but USCIS' responsibility at its stage of adjudication is to ensure that the content of 
the DOL-certified LCA "c01Tesponds with" the content of the H-IB petition. 
As discussed, the Petitioner's asserts in its RFE response that the proffered position requires a 
bachelor's degree in information systems administration and "5 years of experience on various projects 
implementing worldwide IT projects" as prerequisites, stating they provide "the necessary, logical 
analytical and programming skills required of this position." DOL guidance provides a five-step 
process for determining the proper wage level for the proffered position. Step two of this process 
compares the experience described in the O*NET Job Zone to the requirements for the proffered 
position. Network and Computer Systems Administrators are classified in Job Zone 4 with a 
Specialized Vocational Preparation (SVP) rating of "7.0 < 8.0." This SVP rating means that the 
occupation requires "over 2 years up to and including 4 years" of specific vocational training. A 
bachelor's degree expends two years, permitting the Petitioner to require up to and including two years 
of experience as the position's prerequisite before it must increase the wage level from Level I. If an 
employer requires a bachelor's degree and more than two years of work experience, a wage level 
increase is required as follows: 
Amount of Experience Experience and SVP Range Wage Level 
Requirement 
Up to and including two years Less than the experience and SVP No increase 
More than two years and up to Low end of the experience and SVP One level increase three years 
More than three years and up to High end of the experience and SVP Two level increase four years 
More than four years Greater than the experience and SVP Three level increase 13 
12 See Labor Condition Applications and Requirements for Employers Using Nonimmigrants on H-lB Visas in Specialty 
Occupations and as Fashion Models; Labor Certification Process for Permanent Employment of Aliens in the United 
States, 65 Fed. Reg. 80,110, 80, 110-11 (proposed Dec. 20, 2000) (to be codified at 20 C.F .R. pts. 655-56). 
13 See Prevailing Wage Determination Policy Guidance, supra. 
7 
The Petitioner requires a bachelor's degree and "5 years" of experience, which is greater than the SVP 
range. This would appear to necessitate raising the wage level by two increments to a Level N wage 
rate. 14 The Petitioner indicates it would pay the Beneficiary $35.25 per hour for a 30-hour work-week, 
a level of compensation equal to the prevailing Level II wage certified in the LCA. However, it 
appears as though the Petitioner should have designated a Level IV wage rate to compensate her with 
at least $51. 77 per hour for a 30-hour work-week, resulting in a significant pay discrepancy when 
compared to other employees with similar duties, experience, and qualifications. Though not raised 
by the Director in her denial of the petition, these inconsistencies raise significant questions as to 
whether the LCA corresponds to and supports the H-1 B petition, as required, and appear to constitute 
an additional reason this petition cannot be approved. 15 
In summary, we determine that the inconsistencies, discrepancies, unanswered questions, and lack of 
probative documentation in the record raise questions as to the actual, substantive nature of the 
proffered position. 16 The Petitioner has not submitted consistent, corroborative evidence to adequately 
communicate (1) the actual work that the Beneficiary would perform, (2) the complexity, uniqueness, 
or specialization of the tasks, and (3) the correlation between that work and a need for a particular 
level education of highly specialized knowledge in a specific specialty. Accordingly, the Petitioner 
has not established that the proffered position is a specialty occupation. 17 
III. CONCLUSION 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
14 Id. 
15 See 20 C.F.R. § 655.705(b). See also Matter ofSimeio Solutions, LLC, 26 I&N Dec. 542, 545-546 (AAO 2015). For 
additional information about wage levels, see the Foreign Labor Certification Data Center, Online Wage Library - FLC 
Wage Search Wizard available at http://www.flcdatacenter.com/OESWizardStart.aspx. As the proffered position is not a 
specialty occupation we will not address these issues further, other than to advise the Petitioner that it should be prepared 
to address them in any future H-IB filings. 
16 Chawathe, 25 I&N Dec. at 376. 
17 As the lack of probative and consistent evidence in the record precludes a conclusion that the proffered position is a 
specialty occupation and is dispositive of the appeal, we will not further discuss the Petitioner's assertions on appeal. 
8