dismissed H-1B Case: Computer Science

identifying data deleted to 
prevent dearly unwarranted 
invasion of personal privacy 
wmu2 copy 
U.S. Department of Homeland Security 
20 Massachusetts Ave. NW, Rrn. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: WAC 04 240 52000 Office: CALIFORNIA SERVICE CENTER Date: JUN 2 6 2006 
PJ RE: 
PETITION: 
 Petition for a Nonimmigrant Worker Pursuant to Section 1 Ol(a)(l S)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. fj 1 lOl(a)(lS)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All materials have been returned 
to the office that originally decided your case. Any further inquiry must be made to that office. 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
WAC 04 240 52000 
Page 2 
DISCUSSION: The service center director denied the nonimmigrant visa petition. The matter is now on 
appeal before the Administrative Appeals Office (AAO). The appeal will be dismissed. The petition will be 
denied. 
The petitioner is a computer project services and software consulting company. It seeks to employ the 
beneficiary as a programmer analyst and to classify him as a nonirnmigrant worker in a specialty 
occupation pursuant to section 10l(a)( lS)(H)(i)(b) of the Immigration and Nationality Act (the Act), 
8 U.S.C. § 1101 (a)(lS)(H)(i)(b). 
The director denied the petition on the ground that the record failed to establish that the proffered position 
qualifies as a specialty occupation. 
Section 214(i)(l) of the Act, 8 U.S.C. 5 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. 
As provided in 8 C.F.R. 5 214.2(h)(4)(iii)(A), to qualify as a specialty occupation the position must meet 
one of the following criteria: 
(1) 
 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. 
Citizenship and Immigration Services (CIS) interprets the term "degree" in the criteria at 8 C.F.R. 
214.2(h)(4)(iii)(A) to mean not just any baccalaureate or higher degree, but one in a specific specialty 
that is directly related to the proffered position. 
To qualify to perform the services of a specialty occupation an alien must meet one of the following 
criteria set forth in 8 C.F.R. 
 214.2(h)(4)(iii)(C): 
WAC 04 240 52000 
Page 3 
(I) 
 Hold a United States baccalaureate or higher degree required by the specialty 
occupation from an accredited college or university; 
(2) Hold a foreign degree determined to be equivalent to a United States 
baccalaureate or higher degree required by the specialty occupation from an 
accredited college or university; 
(3) 
 Hold an unrestricted State license, registration or certification which authorizes 
him or her to fully practice the specialty occupation and be immediately engaged 
in that specialty in the state of intended employment; or 
(4) 
 Have education, specialized training, and/or progressively responsible experience 
that is equivalent to completion of a United States baccalaureate or higher degree 
in the specialty occupation, and have recognition of expertise in the specialty 
through progressively responsible positions directly related to the specialty. 
The record of proceeding before the AAO contains (1) Form 1-129 and supporting documentation; (2) the 
director's request for evidence (RFE); (3) the petitioner's response to the RFE; (4) the notice of decision; 
and (5) Form I-290B, an appeal brief, and supporting materials. The AAO reviewed the record in its 
entirety before issuing its decision. 
The petitioner describes itself as an information technology company that offers software development, 
implementation, and maintenance services for e-business and enterprise applications. The petitioner 
states that it was established in 2003 and in January 2004 took over the employees and accounts of 
another IT company, Sigma Project Services, Inc. At the time of filing the petitioner indicated that it had 
130 employees, projected gross annual revenues of $13 million, and proposed to employ the beneficiary 
for three years, at an annual salary of $45,000, as a programmer analyst with responsibility "for custom 
program design, development and implementation of software applications and systems to meet clients' 
needs and specifications." The duties of the proffered position were described as follows in a letter 
accompanying the petition: 
[The beneficiary] will analyze user's requirements, procedures, and problems to automate 
processing or to improve existing computer systems. He will confer with personnel 
involved to analyze current operational procedures, and identify problems. He will write 
detailed description of user needs, program functions, and steps required to develop or 
modify computer programs. Further, he will review computer system capabilities, 
workflow, and study existing information processing system to evaluate effectiveness and 
develop a new system to improve productivity. Additionally, he will provide software 
support, which includes testing, debugging, and modifying software as per needs of the 
client. 
The minimum educational requirement for the proffered position, the petitioner indicates, is a bachelor's 
degree in computer science, engineering, or mathematics, together with relevant experience. The 
petitioner declares that the beneficiary is qualified for the position by virtue of his bachelor of 
engineering/technology from Punjab Technical University in India, in June 2000, along with more than 
three years of work experience in the computer field. 
WAC 04 240 52000 
Page 4 
In his decision the director indicated that, although the record contained a summary of the terms of 
employment indicating that the petitioner will pay the beneficiary's salary and provide an employee 
benefits package, as well as signed agreements for software development services between the petitioner 
and client companies, there was no written contract between the petitioner and the beneficiary describing 
his job duties and terms of employment, nor a comprehensive description of the job duties from an 
authorized representative of the client company where the beneficiary would work. Without such a 
description of the job duties, the director concluded, the petitioner had not demonstrated that the proffered 
position meets the statutory definition of a specialty occupation. 
On appeal counsel reiterates that the petitioner is the employer, not the agent, of the beneficiary, and that 
the beneficiary would work mostly on in-house projects with occasional short-term onsite services to 
individual clients. While clients provide the jobs on which the beneficiary works, counsel explains, they 
do not set the specific duties to be performed. The job duties are determined by the petitioner's in-house 
project manager, who supervises the beneficiary to ensure that the client's project requirements are met. 
Counsel submits additional evidence - including the petitioner's offer of employment letter to the 
beneficiary, descriptions of the three types of software solution activities in which it is engaged, 
summaries of various ongoing client projects, and an itinerary of the beneficiary's work for the three year 
period of requested H-IB classification. In its offer of employment letter of August 9, 2004 (which 
predates the filing of the petition on August 27, 2004), the petitioner advised the beneficiary that "[ylour 
services will be utilized in developing/maintaining applications/systems at our office." The petitioner's 
description of its software solution activities reads as follows: 
[The petitioner] is a software solution provider and the technical staff. . . work on three different 
types of activities. 
Provide ongoing customization, maintenance, enhancement, integration support for 
our product DOMAIN C/S which is an Enterprise Contract Management System. 
This work is carried out [at] our development center in Cerritos. As part of th[is] 
work some of the team members may be visiting clients for a period of one to two 
weeks. The job description is "to provide implementation and integration support to 
existing and new clients for this product using development tools like Visual Basic, 
Oracle, SQL Server, Crystal Reports, Winrunner, etc." Please find attached some of 
the resource requirement plans (Annexure 1) related to this activity. 
We undertake turnkey software projects in the area of Client Server, web 
development, data warehousing and testing. These projects come from our existing 
customers and new customers. We have ongoing contracts with customers and SOW 
[statement of work] . . . is issued separately for each project before project initiation. 
The development work for all these projects [is] done out of our Cerritos office. 
Employees may go to client site for discussion and implementation, which varies 
from two to three weeks for each project. The job description is "to develop, 
customize and web enable operations and existing applications using Java, Oracle, 
Weblogic, Winrunner tools." Please find attached some of the resource requirement 
plans (Annexure 11, 111, and IV). 
WAC 04 240 52000 
Page 5 
Provide onsite consulting services at customer's location. These are based on our 
existing contracts and specific SOWS are issued for each assignment. These 
assignments vary between four weeks and eight weeks. The job description for these 
consulting services is "to provide development, implementation, and integration 
support for custom applications developed using Client Server tools / Web tools / 
Database tools." These requirements are ongoing in nature and require persons with 
special skills to handle these job requirements. Please find attached some of the open 
requirements (Annexure V). 
The beneficiary will be working mostly in activit[ies] 1 and 2 and [from] time-to-time may have 
to perform activity 3. 
The beneficiary's expected work itinerary reads as follows: 
Domain CIS Implementation Support, at Cerritos 
 January to December 2005 
Wellpoint / Sellcore Insurance Application Maintenance 
 January to September 2006 
Domain CIS Support 
 October to November 2006 
Onsite Services December 2006 to 
September 2007 
Based on the foregoing documentation and the entire record in this proceeding, the AAO determines that 
the petitioner will be the beneficiary's employer with respect to the work projects listed above, and that 
the beneficiary meets the definition of a U.S. employer at C.F.R. 3 214.2(h)(4)(ii): 
United States employer means a person, firm, corporation, contractor, or other association, or 
organization in the United States which: 
(I) Engages a person to work within the United States; 
(2) Has an employer-employee relationship with respect to 'employees under this part, as 
indicated by the fact that it may hire, pay, fire, supervise, or otherwise control the work 
of any such employee; and 
(3) Has an Internal Revenue Service Tax identification number. 
The petition cannot be approved, however, unless the petitioner can establish that the proffered position 
qualifies as a specialty occupation. In determining whether a position meets the statutory and regulatory 
criteria of a specialty occupation, CIS routinely consults the Department of Labor (D0L)'s Occupational 
Outlook Handbook (Handbook) as an authoritative source of information about the duties and educational 
requirements of particular occupations. Factors typically considered are whether the Handbook indicates 
a degree is required by the industry; 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 HiraBlaker Corp. v. Sava, 712 F.Supp. 1095, 1102 
(S.D.N.Y. 1989)). CIS also analyzes the specific duties and complexity of the position at issue, with the 
Handbook's occupational descriptions as a reference, as well as the petitioner's past hiring practices for 
the position. See Shanti Inc. v. Reno, id., at 1165-66. 
WAC 04 240 52000 
Page 6 
Based on the petitioner's description of the proffered position, the AAO determines that it combines the 
duties of a computer programmer and a computer systems analyst, as described in the Handbook, 2006-07 
edition. Computer programmers are described, in pertinent part, as follows: 
Computer programmers write, test, and maintain the detailed instructions, called 
programs, that computers must follow to perform their functions. Programmers also 
conceive, design, and test logical structures for solving problems by computer . . . . 
[P]rogrammers write programs according to the specifications determined primarily by 
computer software engineers and systems analysts. After the design process is complete, 
it is the job of the programmer to convert that design into a logical series of instructions 
that the computer can follow. The programmer codes these instructions in a conventional 
programming language . . . [or] an artificial intelligence language . . . or one of the most 
advanced object-oriented languages . . . . 
Many programmers update, repair, modify, and expand existing programs . . . . 
Hntzclbook, at 104-05. With respect to the educational requirements of the occupation, the Hntzclbook 
states as follows: 
Although there are many training paths available for programmers . . . the level of 
education and experience employers seek has been rising due to the growing number of 
qualified applicants and the specialization involved with most programming tasks. 
Bachelor's degrees are commonly required, although some programmers may qualify for 
certain jobs with two-year degrees or certificates. The associate degree is a widely used 
entry-level credential for prospective computer programmers. 
. . . . 
Some computer programmers hold a college degree in computer science, mathematics, or 
information systems, whereas others have taken special courses in computer 
programming to supplement their degree in a field such as accounting, inventory control, 
or another area of business . . . . As indicated by the following tabulation, more than two- 
thirds of computer programmers had a bachelor's or higher degree in 2004. 
High school graduate or less 
 8.3% 
Some college, no degree 14.1% 
Associate degree 10.2% 
Bachelor's degree 49.1% 
Graduate degree 18.3% 
Id. at 105-06. As the foregoing information indicates, a baccalaureate or higher degree in a specific 
specialty is not the normal minimum requirement for entry into a computer programming position. One- 
third of computer programmers have either a two-year associate degree, some college courses but no 
degree, or a high school education or less. Moreover, some baccalaureate degree holders earned their 
degrees in disciplines not directly related to the computer field. Accordingly, a computer programmer 
does not meet the first alternative criterion of a specialty occupation at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l). 
WAC 04 240 52000 
Page 7 
Computer systems analysts are described in the DOL Handbook, 2006-07 edition, as follows: 
Computer systems analysts solve computer problems and apply computer technology to 
meet the individual needs of an organization. They help an organization to realize the 
maximum benefit from its investment in equipment, personnel, and business processes. 
Systems analysts may plan and develop new computer systems or devise ways to apply 
existing systems' resources to additional operations. They may design new systems, 
including both hardware and software, or add a new software application to harness more 
of the computer's power. Most systems analysts work with specific types of systems - 
for example, business, accounting, or financial systems, or scientific and engineering 
systems - that vary with the kind of organization . . . . 
Systems analysts . . . use techniques such as structured analysis, data modeling, 
information engineering, mathematical model building, sampling, and cost accounting to 
plan the system. They specify the inputs to be accessed by the system, design the 
processing steps, and format the output to meet users' needs. They also may prepare 
cost-benefit and return-on-investment analyses to help management decide whether 
implementing the proposed technology will be financially feasible. 
When a system is accepted, systems analysts determine what computer hardware and 
software will be needed to set the system up. They coordinate tests and observe the 
initial use of the system to ensure that it performs as planned. They prepare 
specifications, flow charts, and process diagrams for computer programmers to follow; 
then, they work with programmers to "debug" or eliminate, errors from the system. . . . 
Handbook, at 116. With respect to the educational requirements of the occupation, the Handbook states 
as follows: 
[Wlhile there is no universally accepted way to prepare for a job as a systems analyst, 
most employers place a premium on some formal college education. Relevant work 
experience also is very important. For more technically complex jobs, persons with 
graduate degrees are preferred. 
Many employers seek applicants who have at least a bachelor's degree in computer 
science, information science, or management information systems (MIS) . . . . Employers 
are increasingly seeking individuals with a master's degree in business administration 
(MBA), with a concentration in information systems, as more firms move their business 
to the Internet. 
Despite employers' preference for those with technical degrees, persons with degrees in a 
variety of majors find employment as system analysts. The level of education and type of 
training that employers require depend on their needs . . . . 
Id. at 117. The foregoing information indicates that, while a baccalaureate or master's degree in a computer- 
related specialty is favored by many employers of computer systems analysts, it is not the normal minimum 
requirement for entry into such a position. Some companies still accept baccalaureate degrees which are not 
WAC 04 240 52000 
Page 8 
closely related to the computer field, if the individual has acquired sufficient computer knowledge through 
work experience, and some companies may accept relevant work experience in lieu of any baccalaureate 
degree. Accordingly, a computer systems analyst does not meet the ftrst alternative criterion of a specialty 
occupation at 8 C.F.R. 5 214.2 (h)(4)(iii)(A)(I). 
Based on the foregoing analysis, the AAO determines that the proffered position - a combination 
computer programmer and computer systems analyst - does not qualify as a specialty occupation under 
8 C.F.R. 5 214.2(h)(4)(iii)(A)(I) because a baccalaureate or higher degree in a specific specialty, or its 
1 
equivalent, is not the normal minimum requirement for entry into the position. 
As for the second alternative criterion of a specialty occupation, at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(2), there 
is no evidence in the record that a degree requirement is common to the petitioner's industry in parallel 
positions among similar organizations. Nor does the evidence of record show that the proffered position 
is so complex or unique that it can only be performed by an individual with a specialty degree. 
Accordingly, the proffered position does not qualify as a specialty occupation under either prong of 
8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
With regard to the third alternative criterion of a specialty occupation, at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(3), 
there is no documentation in the record indicating that the petitioner normally requires a specialty degree 
or its equivalent for the programmer analyst position. Accordingly, the proffered position does not 
qualify as a specialty occupation under 8 C.F.R. 
 214,2(h)(4)(iii)(A)(3). 
Finally, the proffered position does not meet the fourth alternative criterion of a specialty occupation, at 
8 C.F.R. 5 214.2(h)(4)(iii)(A)(4), because the record does not establish that the duties of the position are 
so specialized and complex that knowledge usually associated with a baccalaureate or higher degree is 
required to perform them. The job duties do not appear to be more specialized or complex than those of a 
typical programmer analyst position, which the Handbook indicates does not normally require 
baccalaureate level knowledge in a specific specialty. The record does not show that the duties of the 
proffered position could not be performed by an individual with less than baccalaureate level knowledge 
in a specific specialty. Accordingly, the position does not qualify as a specialty occupation under 
8 C.F.R. 5 214,2(h)(4)(iii)(A)(4). 
For the reasons discussed above, the proffered position does not meet any of the qualifying criteria of a 
specialty occupation enumerated under 8 C.F.R. 5 214.2(h)(4)(iii)(A). The petitioner has not established 
that the beneficiary will be coming temporarily to the United States to perform services in a specialty 
occupation, as required under section lOl(a)( lS)(H)(i)(b) of the Act, 8 U.S.C. 5 1 101 (a)( 1 5)(H)(i)(b). 
The petitioner bears the burden of proof in these proceedings. See section 291 of the Act, 8 U.S.C. 5 1361. 
The petitioner has not sustained that burden. Accordingly, the AAO will not disturb the director's decision 
denying the petition. 
1 
 The "or its equivalent" language of the regulation (and the Act) only comes into play if there is no 
baccalaureate program and specialty degree offered in a particular field, and the employer therefore 
requires a degree in a related field in addition to specialized experience or training. See Tapis 
International v. INS, 94 F.Supp. 2d 172, 176 (D.Mass. 2000). 
WAC 04 240 52000 
Page 9 
ORDER: 
 The appeal is dismissed. The petition is denied.