dismissed H-1B Case: Computer Science

U.S. Citizenship 
and Immigration 
Services 
In Re: 18037848 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: AUG. 27, 2021 
The Petitioner seeks to temporarily employ the Beneficiary under the H-lB nonirnrnigrant classification 
for specialty occupations. 1 The H-lB program allows a U.S. employer to temporarily employ a 
qualified foreign worker in a position that requires both (a) the theoretical and practical application of 
a body of highly 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 did not 
establish that the proffered position is a specialty occupation. In these proceedings , it is the Petitioner's 
burden to establish eligibility for the requested benefit by a preponderance of the evidence. 2 
Upon de novo review, we will dismiss the appeal. 3 
I. LEGAL FRAMEWORK 
According to the filing requirements for applications and petitions found at 8 C.F.R. § 103.2(b)(l) , 
... [ a ]n applicant or petitioner must establish that he or she is eligible for the requested 
benefit at the time of filing the benefit request and must continue to be eligible through 
adjudication. Each benefit request must be properly completed and filed with all initial 
evidence required by applicable regulations and other USCIS instructions . Any 
evidence submitted in connection with a benefit request is incorporated into and 
considered part of the request. 
The regulations require that before filing a Form 1-129, Petition for a N onimrnigrant Worker , a 
petitioner obtain a certified labor condition application (LCA) from the Department of Labor (DOL) 
in the occupational specialty in which the H-lB worker will be employed. 4 Additionally, a petitioner 
submits the LCA to the DOL to demonstrate that it will pay an H-lB worker the higher of either the 
1 See Immigration and Nationality Act (the Act) section 10l(a)(l5)(H)(i)(b) , 8 U.S.C. § 1 I0I(a)(l5)(H)(i)(b). 
2 See section 291 of the Act; Matter ofChawathe , 25 l&N Dec. 369, 375 (AAO 2010). 
3 See Matter of Christo 's Inc., 26 I&N Dec . 537, 537 n.2 (AAO 2015) . 
4 See 8 C.F.R. § 214.2(h)(4)(i)(B). 
prevailing wage for the occupational classification in the area of employment or the actual wage paid 
by the employer to other employees with similar duties, experience, and qualifications. 5 
Section 101(a)(l5)(H)(i)(b) of the Act defines an H-lB nonirnrnigrant as a foreign national "who is 
corning 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. § 1184(i)(l), defines the 
term "specialty occupation" as an occupation that requires "theoretical and practical application of a 
body of highly specialized knowledge, and attainment of a bachelor's or higher degree in the specific 
specialty (or its equivalent) as a minimum for entry into the occupation in the United States." The 
regulation at 8 C.F.R. § 214.2(h)(4)(ii) largely restates section 214(i)(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. 6 Lastly, 
8 C.F.R. § 214.2(h)(4)(i)(A)(J) states that an H-IB classification may be granted to a foreign national 
who "will perform services in a specialty occupation ... " ( emphasis added). 
Accordingly, to determine whether the Beneficiary will be employed in a specialty occupation, we 
look to the record to ascertain the services the Beneficiary will perform and whether such services 
require the theoretical and practical application of a body of highly specialized knowledge attained 
through at least a bachelor's degree or higher in a specific specialty or its equivalent. Without 
sufficient evidence regarding the duties the Beneficiary will perform, we are unable to determine whether 
the Beneficiary will be employed in an occupation that meets the statutory and regulatory definitions of 
a specialty occupation and a position that also satisfies at least one of the criteria at 8 C.F.R. 
§ 214.2(h)( 4)(iii)(A). The services the Beneficiary will perform in the position determine: (1) the normal 
minimum educational requirement for entry into the particular position, which is the focus of criterion 
1; (2) industry positions which are parallel to the proffered position and thus appropriate for review 
for a common degree requirement, under the first alternate prong of criterion 2; (3) the level of 
complexity or uniqueness of the proffered position, which is the focus of the second alternate prong 
of criterion 2; ( 4) the factual justification for a petitioner normally requiring a degree or its equivalent, 
when that is an issue under criterion 3; and ( 5) the degree of specialization and complexity of the 
specific duties, which is the focus of criterion 4. 7 
By regulation, the Director is charged with determining whether the petition involves a specialty 
occupation as defined in section 214(i)(l) of the Act. 8 The Director may request additional evidence 
in the course of making this determination. 9 
5 See section 212(n)(l) of the Act, 8 U.S.C. § l 182(n)(l )(A); 20 C.F.R. § 655.73 l(a). 
6 8 C.F.R. § 214.2(h)(4)(iii)(A) must be read with the statutory and regulatory definitions of a specialty occupation under 
section 214(i)(l) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). We construe the term "degree" to mean not just any 
baccalaureate or higher degree, but one in a specific specialty that is directly related to the proposed position. See Royal 
Siam COip. v. Chertoff, 484 F.3d 139, 147 (1st Cir. 2007) (describing "a degree requirement in a specific specialty" as 
"one that relates directly to the duties and responsibilities of a particular position"). 
7 See 8 C.F.R. § 214.2(h)(4)(iii)(A). 
8 See 8 C.F.R. § 214.2(h)(4)(i)(B)(2). 
9 See 8 C.F.R. § 103.2(b)(8). 
2 
TI. ANALYSIS 
For the reasons set out below, we determine that the proffered position does not qualify as a specialty 
occupation. Specifically, the record contains insufficient information regarding the proffered position, 
which in turn precludes us from understanding the position's substantive nature and determining 
whether the proffered position qualifies as a specialty occupation under sections 10l(a)(l5)(H)(i)(b), 
214(i)(l) of the Act; 8 C.F.R. § 214.2(h)(4)(i)(A)(l), 8 C.F.R. § 214.2(h)(4)(ii) and (iii)(A). 10 
The Petitioner states on the Form I-129 that it is a CRM, enterprise software solutions, software 
application services company and that it intends to employ the Beneficiary as a "programmer analyst." 
On the LCA submitted in support of the H-lB petition, the Petitioner designates the proffered position 
under the occupational category "Computer Programmers" corresponding to the standard occupational 
classification (SOC) code 15-1131, 11 with a level TI wage. The Petitioner indicates that the Beneficiary 
will work from his home in California and the certified LCA identifies this location, as well as the 
Petitioner's location in New Jersey as the Beneficiary's proposed work sites. 
A. Nature of the Position 
The Petitioner provides an overview of the occupation, listing 16 proposed duties. 12 The proposed 
duties include creating and maintaining an optimal data pipeline architecture, fixing any issues related 
to database performance, developing logical and physical data models for big data platforms, and 
performing/executing data extraction, transformation, and loading (ETL) using ETL tools. These 
duties do not appear to correspond to a computer programmer occupation. According to the 
Occupational Information Network's (O*NET) Summary Report for this occupation "Computer 
Programmers," "[ w ]rite, analyze, review, and rewrite programs, using workflow chart and diagram, 
and applying knowledge of computer capabilities, subject matter, and symbolic logic," "[p ]erform or 
direct revision, repair, or expansion of existing programs to increase operating efficiency or adapt to 
new requirements," "[ w ]rite, update, and maintain computer programs or software packages to handle 
specific jobs such as tracking inventory, storing or retrieving data, or controlling other equipment," 
and "[p ]repare detailed workflow charts and diagrams that describe input, output, and logical 
operation, and convert them into a series of instructions coded in a computer language." 13 Thus, the 
"Computer Programmers" occupation is involved primarily in writing code using programming 
languages. The O*NET does not indicate that "Computer Programmers" are involved in database 
management and architecture, and ETL tasks using ETL tools, 14 the duties that will engage the 
10 The Petitioner submitted documentation in the underlying record to support the H-lB petition, including some evidence 
regarding the proffered position and its business operations. Although we may not discuss eve1y document submitted, we 
have reviewed and considered each one. 
11 We reviewed the Occupational Information Network's (O*NET) Summary Report for "Computer Programmers" at the 
time of filing. O*NET OnLine Archives, "Summary Report for: 15-1131.00 - "Computer Programmers," 
https://www.onetonline.org/ Archive_ ON ET-SOC_ 201 O _Taxonomy_ 09 _ 2020/link/summary/15-1131.00 (last visited 
Aug. 27, 2021 ). 
12 The Petitioner, in response to the Director's request for evidence, repeated the list of 16 duties and added an allocation 
of the Beneficiary's time to each task. 
13 O*NET OnLine Archives, "Summary Report for: 15-1131.00 "Computer Programmers," 
https://www.onetonline.org/Archive_ ONET-SOC _ 201 O _Taxonomy_ 09 _ 2020/link/summary/15-1131.00 (last visited 
Aug. 27, 2021). 
14 Id. 
3 
Beneficiary in the proffered position. Upon review of the outline for the proffered position's duties, 
it appears that SOC code, 15-1199 .00 "Computer Occupations, All Others" would correspond more 
closely to the duties of the proffered position. 15 
If the duties of a proffered position involve aspects of more than one occupational related category 
(e.g., "Computer Programmers" and "Computer Occupations, All Others"), the DOL "Prevailing 
Wage Determination Policy Guidance" states that the employer "should default directly to the relevant 
O*NET-SOC occupational code for the highest paying occupation ." 16 The Petitioner did not select 
the highest paying occupation here. A Level II position located within the "Computer Occupations, 
All Others" (SOC code 15-1199 .00) occupational category when the petition was filed would 
necessitate a higher wage than the "Computer Programmers" occupation in both pertinent regional 
areas in New Jersey and California. 17 This wage disparity highlights the difference between the 
"Computer Programmers" and the "Computer Occupations, All Others" occupational categories and 
sub-categories generally, and more specific to this case, the significance of the Petitioner ' s choice of 
the lower-paying occupational category. In sum, since the position's broad description lacks 
specificity and because it includes duties that more likely pertain to other occupations, we cannot 
determine the substantive nature of this particular position. Therefore, we cannot conclude that the 
actual duties of the proffered position require a bachelor's degree in a specific specialty, or its 
equivalent , nor determine that the duties actually correspond to the certified LCA. 18 
The Petitioner's general description of the duties of the proffered position create ambiguity in the 
record regarding the nature of the position and whether the position falls within the occupational 
category designated on the LCA. The Petitioner's database and ETL duties appear to be atypical duties 
15 We reviewed the O*NET's Summary Report for "Computer Occupations , All Others" at the time of filing. O*NET 
OnLine Archives , "Summary Report for: 15-1199.00 "Computer Occupations , All Others," 
https:/ /www.onetonline .org/ Archive _ ONET-SOC _ 201 O _Taxonomy _ 09 _ 2020/link/summary /15-1199 .00 (last visited 
Aug . 27, 2021). And more specifically, the sub-categories 15-1199.06, "Database Architects, " 15-1199.07 Data 
Warehousing Specialists ," and 15-1199 .08 "Business Intelligence Analysts. " 
16 U.S. Dep't of Labor , Emp 't & Training Admin. , Prevailing Wage Determination Policy Guidance, Nonagric . 
Immigration Programs (rev. Nov . 2009), available at 
http:/ /www.foreignlaborcert.dolet a.gov/pdf/NPWHC _Guidance_ Revised_ I I_ 2009 .pljlf 
17 The Petitioner provided an LCA certified on June 17, 2020 for a position located in[ INew Jersey and 
in! !califomia . The wages for SOC 15-1199.00 and its sub-categories at the time of the LCA 's 
certification can be found on the Foreign Labor Certification Data Center Online Wage Library at: 
https://www .tlcdatacenter.com/OesQuickRe sults.aspx ?code= I 5-1 l 99&area~year=20&source = 1 (New Jersey) 
and https://www .tlcdatacenter.com/OesQuickResults .aspx?code = I 5-I l 99&area=~&ye ar=20&source = I 
(California) . 
18 The LCA serves as the critical mechanism for enforcing section 212(n)(l) of the Act, 8 U.S.C. § l 182(n)(l) . 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) (indicating that the wage 
protections in the Act seek "to protect U.S. workers ' wages and eliminate any economic incentive or advantage in hiring 
temporary foreign workers" and that this "process of protecting U.S. workers begins with [the filing of an LCA] with 
[DOL]."). While DOL is the agency that certifies LCA applications before they are submitted to U.S. Citizenship and 
Immigration Services (USCIS) , DOL regulations note that the Department of Homeland Security (DHS) (i.e., its 
immigration benefits branch, USCIS) is the department responsible for determining whether the content of an LCA filed 
for a particular Form 1-129 actually supports that petition. See 20 C.F.R. § 655.705(b). The regulation at 20 C.F.R. 
§ 655.705(b) requires that USCIS ensure that "the petition is supported by an LCA which corresponds with the 
petition ... . " 
4 
of the duties generally performed by individuals working in positions located within the "Computer 
Programmers" occupation . Again, with these ambiguities in the record regarding the duties of the 
position, we cannot ascertain the substantive nature of the position. The lack of substantive detail not 
only precludes the ability to ascertain whether the duties align with the "Computer Programmers" 
occupational category but also prevents analysis of any claimed uniqueness or complexity and 
specialized nature of these duties. We understand there may be overlap between various technology 
occupations, however, the information in the record is not sufficiently detailed so that we may 
ascertain the substantive nature of the proposed position and analyze whether the petition is supported 
by an LCA which corresponds with the petition. 19 
We also reviewed the Petitioner's organizational chart to ascertain the Beneficiary's role and level of 
responsibility within the Petitioner's business operations. The organizational chart identifies several 
different departments that include different titled positions. However, the organizational chart does 
not identify specific employees within each department. 20 The record also includes background and 
sales information on the project/product to which the Beneficiary will be assigned however, this 
information does not describe the Beneficiary's job duties in relation to the project/product. Neither 
the organizational chart nor the project/product information includes information relating specifically 
to the Beneficiary. Accordingly, our review of the Petitioner's particular position is limited to the 16 
duties the Petitioner uses to describe the proffered position. We emphasize here that we do not rely 
on a title for a position but rather the actual description of the duties the Petitioner expects the 
employee to perform. 
In addition to providing limited information regarding the proposed position such that we cannot 
conclude that the proffered position is a computer programming position as designated on the LCA, 
the record also does not include sufficient evidence to conclude that the proffered position is a specialty 
occupation. Although we recognize that the Beneficiary will require some technological knowledge 
to perform the described tasks, the record does not include probative evidence that this knowledge is 
gained through bachelor's-level study in a specific discipline rather than through certifications in 
third-party technology or experience in the industry. Notably, the Petitioner's described duties 
indicate significant usage of third-party tools and technologies . Many of these tools are used to 
automate processes or to facilitate shortcuts to time-consuming manual functions, which suggests that 
the proffered position requires knowledge of the tool more than the functions or processes underlying 
the tool. Thus, as third-party tools and technologies need not be learned in a bachelor's degree 
program in a specific specialty, we also question whether knowledge sufficient to perform the 
proffered position's duties could be gained through certifications or trainings on the tools and 
technologies. 
19 As noted above, the duties appear to correspond more closely to several of the sub-categories listed in the "Computer 
Occupations, All Others" O*NET Summary Report. However, the duties may also include other even higher-paying 
technology occupations. Again, the description of duties and lack of information regarding the Beneficiary 's particular 
role and level of responsibility in relation to the project/product limit an accurate analysis of the proposed position, its 
substantive nature, and its correlation to the occupation designated on the certified LCA. 
20 We also considered the Petitioner's assertions regarding its hiring requirements for programmer analysts. However, as 
the title "programmer analyst" may include a variety of technology occupations, without descriptions of the duties of 
particular positions, we cannot conclude that the other employees ' positions are actually similar to the proposed position. 
Moreover, without substantive detail regarding the proposed position sufficient to establish its nature and scope, any 
comparison would lack probative results. 
5 
The record does not establish the substantive nature of the proffered position or demonstrate that 
performing the duties described would require the theoretical and practical application of highly 
specialized knowledge and attainment of at least a bachelor's degree in a specific specialty or its 
equivalent. See section 214(i)(l) of the Act; 8 C.F.R. § 214.2(h)(4)(ii) (defining the term "specialty 
occupation). 
B. Position Evaluation 
We also reviewed the position evaluation Department of 
Computer and Information Science in an attempt to better understand the 
nature of the proposed position. ~-----~-(1) briefly describes the credentials that he asserts 
qualify him to opine upon the nature of the proffered position; (2) quotes the duties proposed for the 
Beneficiary; (3) indicates he interviewed the Beneficiary and the Beneficiary's supervisor; and (4) states 
that he reviewed the DOL's Occupational Outlook Handbook (Handbook), O*NET, and several 
articles on STEM fields and trending jobs, as well as job postings he claims are similar to the 
Petitioner's proposed position. 21 
Significantly, the professor does not indicate that the proposed position is a "Computer Programmers" 
occupation. He does not identify which occupations he reviewed in the Handbook or O*NET. And 
when referring to the articles and job postings he reviewed he refers to "conventional technology 
positions, such as software developers and computer systems engineers." 22 It does not appear that 
I I is aware of or discussed the Petitioner's designation of the proffered position as a 
"Computer Programmers" occupation on the certified LCA. His evaluation indicates generally that a 
bachelor's-level computer science degree is a good foundational basis to prepare to perform the duties 
of a number of technology occupations. 23 Here, I f's evaluation adds to, rather than 
clarifies, the ambiguity of the substantive nature of the proposed position. 
Additionally, when discussing the particular position,! I refers to 5 of the Petitioner's 
16 described duties and states that these duties are learned in or offered in computer science or related 
programs. Although he also refers to several courses that provide knowledge to perform the 5 duties he 
mentions, he does not off er analysis on why the duties require these particular courses in order to perform 
them. Notably, he does not discuss or consider whether certifications in particular third-party software, 
or foundational coursework in an associate' s degree program would also provide a similar knowledge 
base. 24 While the professor may draw inferences that certain courses or knowledge obtained through 
a bachelor's degree program in computer science or a related field may be beneficial in performing 
certain duties of the position, we disagree with the conclusion that such a degree is required in order 
to perform them. Without an understanding of the substantive nature of the proposed position within 
21 ~ _____ _.does not provide copies of the job postings for our review and analysis. 
22 Both of these occupations require a significantly higher wage that the occupation of a "Computer Programmer." 
23 Although such a degree may prepare an individual to perfonn a variety of technology occupations, the test to establish a 
position as a specialty occupation is not the skill set or education of a proposed beneficiary, but whether the position itself 
qualifies as a specialty occupation, i.e., whether the duties of the proffered position require the theoretical and practical 
application of a body of highly specialized knowledge and the attainment of a bachelor's degree or higher in a specific specialty, 
or its equivalent. Section 214(i)(l) of the Act; 8 C.F.R. § 214.2(h)(4)(ii). 
24 See Claar v. Burlington N.R.R., 29 F.3d 499, 502 (9th Cir. 1994). A lack of sufficient consideration of alternatives is a 
basis that can adversely affect the evidentiary weight of an opinion. See Ambrosini v. Labarraque, 101 F.3d 129, 140 
(D.C. Cir. 1996). 
6 
the Petitioner's business operations, it is not clear howl I can conclude that the 
position requires the theoretical and practical application of a body of highly specialized knowledge and 
the attainment of a bachelor's degree or higher in a specific specialty, or its equivalent. It appears that 
.__ ______ __, 's evaluation is based on generalities regarding a variety of technology occupations, 
rather than a specific analysis of the duties of the proposed position and its requirements. 
For the reasons discussed, we find that the professor's position evaluation lends little probative value 
to the matter here. In our discretion, we may use opinion statements submitted by the Petitioner as 
advisory. 25 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. 26 We are ultimately responsible for 
making the final determination regarding an individual's eligibility for the benefit sought; the 
submission of expert opinion letters is not presumptive evidence of eligibility. 27 
III. CONCLUSION 
Absent more precise and persuasive evidence regarding the nature of the proffered position's duties, 
the Petitioner has failed to demonstrate the substantive nature of the work to be performed by the 
Beneficiary. This precludes further analysis of whether the proffered position satisfies any criterion 
at 8 C.F.R. § 214.2(h)(4)(iii)(A). The Petitioner has not submitted consistent, corroborative evidence 
to adequately communicate (1) the nature of 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. 
Moreover, the record does not establish that the Petitioner satisfied the statutory and regulatory 
definitions of specialty occupation. Accordingly, the Petitioner has not established that the proffered 
position is a specialty occupation. 28 
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. 
25 Matter of Caron Int'l, Inc., 19 l&N Dec. 791, 795 (Comm'r 1988). 
26 Id. 
27 Id.; see also Matter of V-K-, 24 I&N Dec. 500, 502 n.2 (BIA 2008) ("[E]xpert opinion testimony, while undoubtedly a 
form of evidence, does not purport to be evidence as to 'fact' but rather is admissible only if 'it will assist the trier of fact 
to understand the evidence or to determine a fact in issue."'). 
28 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. 
7