dismissed H-1B Case: Computer Science

MATTER OF D-T- INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JUNE 22,2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a computer company, seeks to temporarily employ the Beneficiary as a "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 Form I-129, Petition for a Nonimmigrant 
Worker, concluding that the Petitioner did not establish: (1) that the proffered position qualified as a 
specialty occupation; and (2) the Petitioner would have an employer-employee relationship with the 
Beneficiary. On appeal, the Petitioner submits additional evidence and asserts that the Director erred 
in the decision to deny the petition. 
Upon de novo review, we will dismiss the appeal. 
I. SPECIALTY OCCUPATION 
A. 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 offered 
position must meet one of the following criteria to qualify as a specialty occupation: 
.
Matter of D- T-, Inc. 
(I) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
(4) The nature of the specific duties [is] so specialized and complex that 
knowledge required to perform the duties is usually associated with the 
attainment of a baccalaureate or higher degree. 
8 C.F.R. § 214.2(h)(4)(iii)(A). We 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 3 84, 3 87 (5th Cir. 2000). 
B. Proffered Position 
In the petition, the Petitioner stated that the Beneficiary "will be working on a project for the 
through an agreement between [the Petitioner] and 
(vendor)." The Petitioner further stated: 
We now wish to employ [the Beneficiary] as a Programmer Analyst to perform the 
following duties in-house at our facilities: 
• Develop, test and document programs applying knowledge of programming 
techniques; 
• Provide assistance in formal application and infrastructure assessments and 
requirement analysis; 
• Provide services to support security and testing efforts; 
• Write manual for users to describe installation and operational procedures; 
• Analyze, review, and alter program to increase operational efficiency or adapt 
to new requirement; 
• Understanding Business requirement and analyzing the Code for providing 
solutions to the customers; 
• Production support and maintaining the application. 
2 
.
Matter of D-T-, Inc. 
The Programmer Analyst will appropriately apportion his time to various 
aspects of his work, depending upon the needs of particular application or 
project. 1 
The Petitioner's requirements for the position varied within the record as follows: 
Requirements Initial Petition RFE Response 
Level of education bachelor's bachelor's 
Discipline computer science, computer a related analytic or scientific 
engineering, or a relevant field discipline 
of engineering 
Work Experience none work experience in the field 
The Petitioner did not explain the reason for the variance in the requirements. 
C. Analysis 
The Director requested additional information relating to the work the Beneficiary would perform. 
In response, instead of submitting the requested documentary evidence, the Petitioner informed the 
Director that the Beneficiary "will be working on a project ... through an agreement between the 
petitioner ... and (vendor). Please note that this [is] a project for a government 
agency and a lot of the documents are confidential and cannot be shared by the petitioner." The 
Petitioner did not attempt to submit similar or secondary evidence. See 8 C.F.R. 
§ 103 .2(b )(2). Instead of submitting the requested employment records, the Petitioner submitted an 
unsupported "discussion" of the Beneficiary's proposed duties and job site. 
While the Petitioner never specifically claimed that the evidence was privileged, we note that the 
Petitioner originally claimed "a lot of the documents are confidential and cannot be shared." While 
a petitioner should disclose when a submission contains confidential commercial information, the 
claim does not provide a blanket excuse for a petitioner not providing such a document if that 
document is material to the requested benefit. 2 Although a petitioner may always refuse to submit 
confidential commercial information if it is deemed too sensitive, the Petitioner must also satisfy the 
burden of proof and runs the risk of a denial. Cf Matter of Marques, 16 I&N Dec. 314 (BIA 1977) 
(holding the "respondent had every right to assert his claim under the Fifth Amendment[; however], 
1 
The Petitioner recited or paraphrased most of the proffered position's duties from the Dictionary of Occupational Titles 
(DOT). See U.S. Dep't of Labor's (DOL), DOT, http://www.occupationalinfo.org/03/030162014.html. 
2 
Both the Freedom of Information Act and the Trade Secrets Act provide for the protection of a petitioner's confidential 
business information when it is submitted to USClS. See 5 U.S.C. § 552(b)(4), 18 U.S.C. § 1905. Additionally, the 
petitioner may request pre-disclosure notification pursuant to Executive Order No. 12,600, ''Predisclosure Notification 
Procedures for Confidential Commercial Information." Exec. Order No. 12,600, 52 Fed. Reg. 23,781 (June 23, 1987). 
3 
.
Matter of D- T-, Inc. 
in so doing he runs the risk that he may fail to carry his burden of persuasion with respect to his 
application."). The Petitioner did not submit sufficient evidence to satisfy its burden of proof. 
On appeal, the Petitioner provides additional documents in response to the Director's decision 
without describing the manner in which the newly submitted material refutes the denial. This 
consists ofthe following material: 
1. An email exchange the Petitioner asserts was between a U.S. Citizenship and Immigration 
Services (USCIS) officer and an representative, purportedly verifying a project's 
authenticity; 
2. The original Agreement between the Petitioner and 
3. An Addendum to the Agreement between the Petitioner and 
4. Two letters regarding the future association between the Petitioner and 
5. An Employee Agreement and an Employment Offer between the Petitioner and the 
Beneficiary; 
6. A letter on letterhead stating the Petitioner will be responsible for directing the 
manner and means of work of its consultants ; 
7. A list of active projects; and 
8. The Petitioner's organizational chart. 
The Petitioner asserts item one is an electronic conversation between a USCIS representative and 
First, the evidence is insufficient to establish that the submitted material is an actual 
email exchange between the claimed parties. Second, even if we presume the exchange is between 
the claimed parties, we are not required to approve applications or petitions where eligibility has not 
been demonstrated, merely because of other approvals that may have been erroneous. See, e.g., 
Matter of Church Scientology International, 19 I&N Dec. 593, 597 (Comm'r 1988). Third, the 
exchange discusses a different beneficiary than the one named in the present petition. Therefore, we 
have no assurances that all of the pertinent elements in the present petition are identical to the 
petition being discussed. Fourth, USCIS had 
already approved the petition filed on the other 
beneficiary's behalf before the email exchange took place. As a result, even if this documentation 
verified the authenticity of the project, it does not establish that the proffered position named in the 
present petition qualifies as a specialty occupation. 
Likewise, the original Agreement listed at item two is insufficient to demonstrate that the work the 
Beneficiary will perform meets the requirements of a specialty occupation. The Agreement merely 
stated that the "work to be performed will be found in the Schedule for each specific project." 
However, the Petitioner did not submit finalized, and agreed upon schedules between itself and a 
third party detailing the duties the Beneficiary would perform for any specific project. 
Regarding item three, the addendum modified the scope to include additional reports, and added to 
the scope for a task that involved the setup of scanners, scanning software installation, and software 
development "to ingest scanned documents into SharePoint system," and to create a dashboard to 
show scanned documents. The Petitioner does not offer arguments detailing how this added scope 
4 
.
Matter of D-T-, Inc. 
supports its claim that the work to be performed satisfies any of the criteria of a specialty occupation 
found at 8 C.F.R. § 214.2(h)(4)(iii)(A). Furthermore, the Petitioner and an representative 
signed the addendum on September 19, 2016, which postdates the petition filing date. Importantly, 
the Petitioner must establish eligibility at the time of filing the nonimmigrant visa petition. A visa 
petition may not be approved at a future date after a petitioner or 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). 
Additionally, the letters listed at item four lack specific details about the work the Beneficiary will 
perform. While the letters discuss software development and automating paper-based initiatives, 
they do not contain any of the specific duties to perform such services. While we reviewed items 
five through eight, we conclude that they do not contain sufficient information about the duties of 
the position. 
We have reviewed the entire record of proceedings before us. For the reasons discussed below, we 
have determined that the Petitioner has not demonstrated that the proffered position qualifies as a 
specialty occupation.3 Specifically, we find that the record does not establish that the job duties 
require an educational background, or its equivalent, commensurate with a specialty occupation.4 
1. First Criterion 
We tum 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. 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. 5 On the labor 
condition application (LCA) the Petitioner presented in support of this petition, it classified the 
proffered position under the occupational title "Computer Programmers," corresponding to the 
Standard Occupational Classification code 15-1131 at a Level I wage rate. 6 
3 Although some aspects of the regulatory criteria may overlap, we will address each of the criteria individually. 
4 The Petitioner submitted documentation to support the petition, including evidence regarding the position and its 
business 
operations. While we may not discuss every document submitted, we have reviewed and considered each one. 
5 We do not, however, maintain that the Handbook is the exclusive source of relevant information. 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/OCO/. 
6 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 ofthe 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 she 
will be closely supervised and her work closely monitored and reviewed for accuracy; and (3) that she 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://flcdatacenter.com/download/NPWHC_Guidance_Revised_ll_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 D- T-, Inc. 
The chapter of the Handbook titled "How to Become a Computer Programmer" provides in pertinent 
part: "Most computer programmers have a bachelor's degree; however, some employers hire 
workers who have an associate's degree." 7 Based on the Handbook, the fact that a person may be 
employed as a computer programmer and may use information technology skills and knowledge in 
the course of his or her job is not sufficient to establish the position as a specialty occupation. Thus, 
without more, the Handbook is insufficient to conclude that simply by virtue of its occupational 
classification the position qualifies as a specialty occupation. Furthermore, the Petitioner does not 
directly assert how it has satisfied this criterion. 
2. Second Criterion 
The second criterion presents two alternative prongs: "The degree requirement is common to the 
industry in parallel positions among similar organizations or, in the alternative, an employer may 
show that its particular position is so complex or unique that it can be performed only by an 
individual with a degree .... " 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) (emphasis added). The first prong 
concentrates on the common industry practice, while the alternative prong narrows its focus to the 
Petitioner's specific position. 
a. First Prong 
Satisfying the first prong consists of the Petitioner establishing 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. 
In determining whether there is such a common degree requirement, factors often considered by us 
include: 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 attest that such firms "routinely employ and 
recruit only degreed 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)). 
As previously discussed, the Petitioner has not established that its proffered position is one for which 
the Handbook, or other authoritative source, reports a requirement for at least a bachelor's degree in 
a specific specialty, or its equivalent. Thus, we incorporate by reference the previous discussion on 
the matter. Furthermore, the Petitioner has not offered evidence from an industry professional 
association, or from firms or individuals in the industry, indicating such a degree is a minimum 
requirement for entry into the position. Consequently, the Petitioner has not met the first prong. 
7 
See the Handbook, Computer Programmers (20 16-17 ed. ). 
Matter of D- T-, Inc. 
b. 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. Throughout the proceedings, the Petitioner has not claimed to qualify under this 
criterion, and it has not offered evidence to apply to the regulation at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(2). 
3. 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 v. Meissner, 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. 
On appeal, the Petitioner does not offer arguments or evidence to establish that it normally requires 
at least a bachelor's degree in a specific specialty, or its equivalent, for the proffered position. 
Therefore, it has not satisfied the third criterion at 8 C.F.R. § 2l4.2(h)(4)(iii)(A). 
4. Fourth Criterion 
The fourth criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A) requires a petitioner to establish that the nature 
of the specific duties is so specialized and complex that the knowledge required to perform them is 
usually associated with the attainment of a baccalaureate or higher degree in a specific specialty, or 
its equivalent. We reviewed the Petitioner's statements regarding the proffered position. However, 
it did not assert eligibility or provide evidence in support of this criterion. As a result, the Petitioner 
has not satisfied the regulation at 8 C.F.R. § 214.2(h)(4)(iii)(A)(4). 
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 . 
.., 
.
Matter of D-T-, Inc. 
II. PLACE OF EMPLOYMENT 
A. Legal Framework 
The Petitioner is required to submit a certified LCA to 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. Matter of Simeio Solutions. LLC, 26 I&N 
Dec. 542, 545-546 (AAO 2015). 
A change in the place of employment of a beneficiary to a geographical area requmng a 
corresponding LCA be certified to the USCIS with respect to that beneficiary may affect eligibility 
for H-1B status and is, therefore, a material change for purposes of 8 C.F.R. § 214.2(h)(2)(i)(E) and 
(11)(i)(A). Matter of Simeio Solutions, 26 I&N Dec. 542. When there is a material change in the 
terms and conditions of employment, the petitioner must file an amended or new H-1 B petition with 
the corresponding LCA. Jd 
B. Analysis 
The Petitioner offered inconsistent information regarding the Beneficiary's work location. More 
specifically, the evidence reflecting the Beneficiary's work location included the following: 
• The Form 1-129 in which the Petitioner indicated (on page 5) the Beneficiary would 
work at its location in New Jersey; however, it also checked the boxes (on 
page 5 and 21) that reflected the Beneficiary would work at an off-site location; 
• The LCA, in which the Petitioner designated its New Jersey, office as the 
Beneficiary's only place of employment; 
• The March 2016, letter in which the Petitioner stated the Beneficiary "will be 
working with one of our clients, as our employee, on a project either from our office 
or at their location based on the necessity after his arrival in US;" 
• The March 2015, letter from the president of (a third party vendor located 
in Georgia) titled "Ref: Master Engagement Agreement with [the Petitioner]" reflects 
that the Beneficiary's work location will be at _ Georgia facilities; 
• The March 2016 Employee Agreement between the Petitioner and the Beneficiary 
signified that the work location could be at the New Jersey, location or at 
any client's location in "any part of the United States;" 
• The September 2016 Addendum to the Agreement between the Petitioner and 
which stated the work "shall be performed at work location 
NJ and as per need [sic] at Client 
location in GA." 
• The appeal brief presents the Beneficiary's sole work location as the Petitioner's 
office in . New Jersey; and 
• The revised page 5 of the Form 1-129, submitted on appeal in which the Petitioner 
8 
.
Matter of D- T-. Inc. 
changed question 3 to indicate that the Beneficiary would work onsite at the 
petitioning company's New Jersey, address; however, question 5 still 
reflects that the Beneficiary will work at an off-site location. 
Based on the inconsistent information in the record as provided by the Petitioner, we cannot 
conclude that the LCA accurately reflects the Beneficiary's place of employment as required. We 
are unable to determine the Beneficiary's place of employment. Consequently, we must also 
question whether the Petitioner will have an employer-employee relationship with the Beneficiary. 
The Petitioner has not met its burden of proof in this regard. 
III. CONCLUSION 
For the reasons outlined above, the Petitioner has not established eligibility for the benefit sought. 
ORDER: The appeal is dismissed. 
Cite as Matter of D-T-, Inc., ID# 478792 (AAO June 22, 2017) 
9