dismissed H-1B Case: Computer Science

MATTER OF N-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY31,2016 
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 an "application 
systems engineer'' under the H-1 B nonimmigrant classification for specialty occupations. See 
Immigration and Nationality Act (the Act)§ 101(a)(I5)(H)(i)(b), 8 U.S.C. § JJOI(a)(JS)(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 Director, California Service Center, denied the petition. The Director concluded that the 
evidence of record is insufficient to establish that the proffered position qualifies as a specialty 
occupation. 
The matter is now before us on appeal. In its appeal, the Petitioner asserts that the Director's 
conclusion is erroneous. 
Upon de novo review, the appeal will be dismissed. 
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. 
Matter of N-, Inc. 
The regulation at 8 C.P.R. § 214.2(h)(4)(ii) states, in pertinent part, the following: 
Specialty occupation means an occupation which [(I)] requires theoretical and 
practical application of a body of highly specialized knowledge in fields of human 
endeavor including, but not limited to, architecture, engineering, mathematics, 
physical sciences, social sciences, medicine and health, education, business 
specialties, accounting, law, theology, and the arts, and which [(2)] requires the. 
attainment of a bachelor's degree or higher in a specific specialty, or its equivalent, as 
a minimum for entry into the occupation in the United States. 
Pursuant to 8 C.F.R. § 214.2(h)(4)(iii)(A), to qual it)' as a specialty occupation, a proposed position must 
meet one of the following criteria: 
(1) A baccalaureate or higher degree or its equivalent IS normally the m1mmum 
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. 
As a threshold issue, it is noted that 8 C.F.R. § 214.2(h)(4)(iii)(A) must logically be read together 
with section 214(i)(l) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). In other words, this regulatory 
language must be construed in harmony with the thrust of the related provisions and with the statute 
as a whole. SeeK Mart Corp. v. Cartier, Inc., 486 U.S. 281,291 (1988) (holding that construction 
oflanguage which takes into account the design of the statute as a whole is preferred); see also COlT 
Independence Joint Venture v. Fed Sav. and Loan Ins. Corp., 489 U.S. 561 (1989); Matter ofW-F-, 
21 I&N Dec. 503 (BIA 1996). As such, the criteria stated in 8 C.F.R. § 214.2(h)(4)(iii)(A) should 
logically be read as being necessary but not necessarily sufficient to meet the statutory and 
regulatory definition of specialty occupation. To otherwise interpret this section as stating the 
necessary and sufficient conditions for meeting the definition of specialty occupation would result in 
particular positions meeting a condition under 8 C.F.R. § 214.2(h)(4)(iii)(A) but not the statutory or 
regulatory definition. See Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). To avoid this 
result, 8 C.F.R. § 214.2(h)(4)(iii)(A) must therefore be read as providing supplemental criteria that 
must be met in accordance with, and not as alternatives to, the statutory and regulatory definitions of 
specialty occupation. 
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Matter of N-, Inc. 
As such and consonant with section 214(i)( 1) of the Act and the regulation at 8 C.F .R. 
§ 214.2(h)(4)(ii), U.S. Citizenship and Immigration Services (USCIS) consistently 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. See 
Royal Siam Corp. v. Chert off, 484 F .3d 139, 14 7 (1st Cir. 2007) (describing "a degree requirement in 
a specific specialti' as "one that relates directly to the duties and responsibilities of a particular 
position"). Applying this standard, USCIS regularly approves H-1 B petitions for qualified 
individuals who are to be employed as engineers, computer scientists, certified public accountants, 
college professors, and other such occupations. These professions, for which petitioners have 
regularly been able to establish a minimum entry requirement in the United States of a baccalaureate 
or higher degree in a specific specialty, or its equivalent, directly related to. the duties and 
responsibilities of the particular position, fairly represent the types of specialty occupations that 
Congress contemplated when it created the H-1 B visa category. 
To determine whether a particular job qualifies as a specialty occupation, USCIS does not simply 
rely on a position's title. The specific duties of the proffered position, combined with the nature of 
the petitioning entity's business operations, are factors to be considered. USCIS must examine the 
ultimate employment of the individual, and determine whether the position qualifies as a specialty 
occupation. See generally Defensor v. Meissner, 201 F. 3d 384. The critical element is not the title 
of the position or an employer's self-imposed standards, but whether the position actually requires 
the theoretical and practical application of a body of highly specialized knowledge, and the 
attainment of a baccalaureate or higher degree in the specific specialty as the minimum for entry into 
the occupation, as required by the Act. 
We note that, as recognized by the court in Defensor, 201 F.3d at 387-88, where the work is to be 
performed for entities other than the petitioner, evidence of the client companies' job requirements is 
critical. See Defensor v. Meissner, 201 F.3d at 387-88. The court held that the former Immigration 
and Naturalization Service had reasonably interpreted the statute and regulations as requiring the 
petitioner to produce evidence that a proffered position qualifies as a specialty occupation on the 
basis ofthe requirements imposed by the entities using the beneficiary's services. Jd. Such evidence 
must be sufficiently detailed to demonstrate the. type and educational level of highly specialized 
knowledge in a specific discipline that is necessary to perform that particular work. 
B. The Proffered Position 
On the Form I-129, the Petitioner described itself as a 33-employee software services company 
located in California. The Petitioner seeks to employ the Beneficiary as an "application 
systems engineer" from October 1, 2015, to September 30, 2018, at a salary of $76,000 per year. 
The Petitioner indicated that the Beneficiary will work off-site in California. 
The labor condition application (LCA) submitted to support the visa petition states that the proffered 
position corresponds to Standard Occupational Classification (SOC) code and occupation title 
15-1121, "Computer Systems Analysts," from the Occupational Information Network (O*NET). 
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(b)(6)
Matter of N-, Inc. 
The LCA further states that the proffered position is a Level I position. The LCA lists the sole place 
of employment as the address. 
The Petitioner submitted a cover letter and an end-client letter, both of which contain the following 
list of job duties for the proffered position: 
• Collaborate with Business users and Architects in identifying specific requirements 
for building appropriate Solutions 
• Coordinate and assist in Development, Quality Assurance and User Acceptance 
testing when applicable and coordinate with cross functional teams like Dev, test and 
T AC to ensure the smooth delivery of product 
• Write Verification and Validation GAT Procedures for [end-client] modules 
• Execute the written procedures in Lab by configuring the devices to generate the 
Alarms using CLJ and verifying the 
messages using Splunk and Traps in NMS TIP 
• Log, track and revalidation of issues found during the SNG/EECP and for Atlas 
Customer Portal 
• Assist in troubleshooting production issues; create documented procedures for 
knowledge transfer 
In response to the Director's request for evidence (RFE), the Petitioner 
provided another description 
of the proffered duties, with percentages of time on each duty, as follows (verbatim): 
Tasks Difficulty %Time 
Level to be 
Spent 
1. Lead and synchronize teams of information systems professionals in 
the maturity of software and integrated information systems, process 4 30% 
control software and additional embedded software control systems. 
Provide guidance and leadership to new engineers 
2. Evaluate, troubleshoot, document, upgrade and build up maintenance 
procedures for operating systems, communications environments and 4 30% 
software 
3. Frequently work together with customer and functional colleagues in 
addition to management. 4 10% 
4. Examine and select methods and procedures used for obtaining 
solutions. Research, appraise and create technical information to 4 10% 
design 
5. Develop and test automated systems, Develop data, procedure and 
network models to optimize structural design and to assess the 3 10% 
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(b)(6)
Matter of N-, Inc. 
performance and consistency of designs 
6. Plan, design and organize the progress, installation, integration and 
function of computer-based systems. Follow the corporation 4 10% 
regulations for application implementation 
Notes on Difficulty Level 
1 Novice 
2 Some Exposure 
3 Familiarity with Computers 
4 Bachelor's 
5 Master's 
C. Analysis 
Upon review of the record of proceedings, we cannot find that the proffered position qualifies as a 
specialty occupation because the Petitioner has not sufficiently demonstrated the substantive nature 
of the proffered position. 1 
The evidence of record does not contain a detailed explanation of what "project" the Beneficiary will 
be assigned to perform for the end-client. The end-client letter simply states that the Beneficiary "is 
currently engaged in a critical project with our company," but does not provide any further details 
such as the name and nature of this "critical project." 2 Similarly, the mid-vendor letter states that it 
is "executing the current project in [the end-client]," but does not specifically identify any particular 
project, either. 
In its RFE response, the Petitioner stated that it attached a "work schedule" which "lists out all the 
projects to be handled, job duties to be performed, work location information, etc." However, the 
attached "work schedule" {entitled "Project Schedule") is an appendix to an unspecified contract or 
document that was not explained or submitted for the record. We therefore cannot determine the 
relevance of this "Project Schedule" to the instant matter at hand. We observe that the "Project 
Schedule" makes apparent references to other companies, e.g., and ' whose 
roles within the contractual relationship between the end-client, mid-vendor, and the Petitioner have 
not been identified. We also observe that this document does not list "all the projects to be handled, 
job duties to be performed, work location information, etc.," as claimed by the Petitioner. While this 
1 The California Secretary of State website indicates that the Petitioner's corporate status has been suspended. That is, 
the Petitioner's powers, rights and privileges, including the right to use its corporate name in California, were suspended. 
See attached print-outs. The Petitioner's corporate status raises questions regarding whether the Petitioner's offer of 
employment to the Beneficiary is bonafide. 
2 
The Petitioner has not submitted a copy of the actual contractual agreement between the end-client and the Petitioner 
for the Beneficiary's services. 
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(b)(6)
Matter of N-, Inc. 
document contains a brief outline of scheduled activities, such as will be taking delivery of ten 
(10) Aircraft starting in July, 2015" and is expected to begin in late summer 2015 with Beta 
Period 1 ," there are no detailed explanations of what specific project these activities relate to, what 
specific job duties will be performed, and who will perform these job duties. 
The Petitioner also submitted technical documentation produced by the end-client for the following 
projects: (1) . (2) (3)' 
(4) (5) 
(6) [end-client] Use Case 
Description"; and (7)' for Again, however, 
the Petitioner has not explained the relevance of these technical documents to the matter at hand. 
None of these technical documents specifically reference the role of the Beneficiary or an 
"Applications Systems Engineer." The Petitioner also has not explained where and how the 
proffered job duties, such as "[l]og , track and revalidation of issues found during the SNG/EECP and 
for Atlas Customer Portal," fit into these various projects. These technical documents do not contain 
the stated job duties for the proffered position, nor do they specifically refer to "SNG/EECP," "Atlas 
Customer Portal," "NMS TIP," or any of the other terms and acronyms found in the job 
descriptions . 3 
Conversely, the job duties provided by· the Petitioner and the end-client are not specifically 
explained within the context of the above-listed seven projects for which the Petitioner submitted 
technical documentation. Instead, the job duties provided by the Petitioner and the end-client are 
stated in broad and generalized terms that do not adequately describe the work to be performed by 
the Beneficiary. To illustrate, the end-client letter lists the proffered duty of "[c]ollaborate with 
Business 
users and. Architects in identifying specific requirements for building a ppropriate 
Solutions." There is no further explanation of what specific tasks the Beneficiary will perform, i.e., 
what is meant by "[ c ]ollaborate, with" or what "Solutions" the Beneficiary will be involved in 
building. The end-client letter also lists the job duty of "[c]oordinate and assist in Development, 
Quality Assurance and User Acceptance testing when applicable and coordinate with cross 
functional teams like Dev, te
standi AC to ensure the smooth delivery of product." Again, there is 
no further explanation of what is meant by the vague terms "[c]oordinate" and "assist," and what 
"product" the Beneficiary will be involved in delivering. 
Notably, the Task Orders executed between the mid-vendor and the Petitioner simply describe the 
nature of the work to be done by the Beneficiary as "Systems Engineer." These Task Orders further 
state that " [t]he exact nature of work will be determined by the on-site Reporting Manager based on 
. project requirements and con
sultant skills." Thjs language leads us to further question the nature of 
the work that the Beneficiary will actually perform. 
3 Some of the project document s contain tables summari zing the terminolog y and acronyms used. We did not find any 
reference s to "SNG/EECP," "Atlas Customer Portal," or "NMS TIP" within these tables," or elsewhere in the documents . 
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Matter of N-. Inc. 
In response to the Director's RFE, the Petitioner stated that the Beneficiary will spend thirty percent 
of his time on duties including "[l]ead and synchronize teams of information systems professionals 
in the maturity of software and integrated information systems." Not only is this job duty vaguely 
worded, but it also appears inconsistent with the Level I (entry) wage level selected here. In 
designating the proffered position at a Level I wage rate, the Petitioner has indicated that the 
proffered position is a comparatively low, entry-level position relative to others within the 
occupation 4 That is, in accordance with the relevant DOL explanatory information on wage levels, 
this wage rate indicates that the Beneficiary is only required to have a basic understanding of the 
occupation and will perform routine tasks that require limited, if any, exercise of judgment. See 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.doleta.gov/pdf/NPWHC_ Guidance_Revised_ll_2009.pdf The 
Petitioner's designation of the proffered position as a Level I, entry-level, position is inconsistent 
with the above job duty, and raises additional questions about the nature of the proffered position. "5 
When considered as a whole, the evidence of record lacks a sufficient, detailed explanation of all the 
work the Beneficiary will be assigned to perform during the entire validity period requested. We 
therefore find the evidence of record insufficient to demonstrate the substantive nature of the 
proffered position and its constituent duties. 
Consequently, we are precluded from finding that the proffered position satisfies any criterion at 8 
C.F.R. § 214.2(h)(4)(iii)(A), because it is the substantive nature of that work that determines (I) the 
normal minimum educational requirement for the particular position, which is the focus of criterion l; 
4 A Levell wage rate is described as follows: 
Level I (entry) wage rates are assigned to job offers for beginning level employees who have only a 
basic understanding of the occupation. These employees perform routine tasks that require limited, if 
any, exercise of judgment. The tasks provide experience and familiarization with the employer's 
methods, practices, and programs. The employees may perform higher level work for training and 
developmental purposes. These employees work under close supervision and receive specific 
instructions on required tasks and results expected. Their work is closely monitored and reviewed for 
accuracy. Statements that the job offer is for a research fellow, a worker in training, or an internship 
are indicators that a Level I wage should be considered. 
See 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.doleta.gov/pdf/N PWHC _Guidance_ Revised_! I_ 2009.pdf 
5 The Petitioner's designation of this position as·a Level I, entry-level position undermines its claim that the position is a 
''lead" position compared to.other positions within the same occupation. Nevertheless, a Level I wage-designation does 
not preclude a proffered position rrom classification as a specialty occupation, just as a Level IV wage-designation does 
not definitively establish such a classification. In certain occupations (e.g., doctors or lawyers), a Level I, entry-level 
position would still require a minimum of a bachelor's degree in a specific specialty, or its equival~nt, for 
entry. Similarly, however, a Level IV wage-designation would not reflect that an occupation qualifies as a specialty 
occupation if that higher-level position does not have an entry requirement of at least a bachelor's degree in a specific 
specialty, or its equivalent. That is, a position's wage level designation may be a relevant factor but is not itself 
conclusive evidence that a proffered position meets the requirements of section 214(i)( I) of the Act. 
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Matter of N-, Inc. 
(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. Accordingly, as the evidence does not satisfy any of the criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A), it cannot be found that the proffered position qualifies as a specialty 
occupation. The. appeal will be dismissed and the petition denied for this reason. 
II. CONCLUSION 
The Petitioner has not established. that the proffered position, more likely than not, qualifies as a 
specialty occupation. 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; Matter ofOtiende, 26 
I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter ofN-, Inc., ID# 17138 (AAO May 31, 2016) 
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