dismissed H-1B Case: Computer Science

identifyingdatadeletedto
preventclearlyunwarr~nted
invasionof personalpnvacy
PUBLIC COpy
u.s.Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
u.S. Citizenship
and Immigration
Services
MAR 052007
FILE: WAC 05 125 51205 Office: CALIFORNIA SERVICE CENTER Date:
INRE: Petitioner:
Beneficiary:
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(l5)(H)(i)(b) of the
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(l5)(H)(i)(b)
ON BEHALF OF PETITIONER:
SELF-REPRESENTED
INSTRUCTIONS:
This is the decision of the Administrative Appeals Office in your case. All documents 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
www.uscis.gov
WAC 05 125 51205
Page 2
DISCUSSION: The director of the California Service Center denied the nonimmigrant visa petition. The matter
is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed and the petition
will be denied.
The petitioner is a nursing home management company that seeks to employ the beneficiary as a Programmer
Analyst pursuant to section 101(a)(15)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. §
1101(a)(15)(H)(i)(b). The director denied the petition because the petitioner failed to establish that the
proffered position was a specialty occupation.
On appeal the petitioner asserts that the evidence contained in the record establishes that the proffered
position meets the definition of a specialty occupation.
The record of proceeding before the AAO contains: (1) Form 1-129, Petition for a Nonimmigrant Worker
(Form 1-129) and supporting documentation; (2) the director's request for evidence (RFE); (3) the petitioner's
response to the director's RFE; (4) the director's denial letter; (5) Form 1-290B, Notice of Appeal to the AAO
(Form 1-290B) with brief and supporting documentation. The AAO reviewed the record in its entirety before
issuing its decision.
Section 214(i)(1) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1184(i)(1) 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 term "specialty occupation" is further defined at Title 8 of the Code of Federal Regulations (8 C.F.R.)
section 214.2(h)(4)(ii) as:
An occupation which 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 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 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 rmmmum
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;
WAC 05 125 51205
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(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.
u.s. 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 determine whether a particular job qualifies as a specialty occupation, CIS 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. CIS must examine the ultimate employment of the
alien, and determine whether the position qualifies as a specialty occupation. Cf Defensor v. Meissner, 201
F. 3d 384 (5 th Cir. 2000). The critical element is thus not the title of the position nor 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.
The petitioner states that it seeks the beneficiary's services as a computer programmer analyst. Evidence of
the beneficiary's duties include: the Form 1-129 and attachments; the petitioner's response to the director's
RFE; and the petitioner's Form 1-290B and attachments.
The petitioner indicates that it provides nursing home management services to eleven licensed nursing
facilities in the Los Angeles County area. The petitioner states that its services include:
[M]edical billing (Medical and Medicare), accounts receivable, accounts payable, payroll
processing, patient accounting, follow-up of pending & denied claims, remittance advice
audits, insurance & patient billing, and comprehensive practice analysis & reporting ....
business-consulting services such as risk management/quality improvement, contract
negotiations, human resource management, record keeping, vendor bidding procurement and
IT support.
The petitioner states that, as a programmer analyst the beneficiary will:
Be responsible for the efficient use of the petitioner's computer systems;
Ensure that the design of the systems software allows all components, including
computers, the network, and hardware/software fit together and work properly;
Monitor and adjust performance of existing systems and continually survey the current
computer site to determine future computer needs;
Analyze and develop specialized software as necessary and troubleshoot problems as
reported by users and automated network monitoring systems;
Make recommendations for enhancements in the construction of future servers and
networks.
Specifically, the petitioner states that the beneficiary will:
WAC 05 12551205
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Maintain computer systems network hardware and software;
Monitor network to ensure network availability to all systems users and performance of
necessary maintenance to support it;
Confer with managers to obtain information on limitation and capabilities required for
data processing projects and projected workload;
Consult with staff to evaluate interface between hardware and software, and operational
and performance requirements of overall systems;
Make recommendations for improvements in the computerized system and review and test
the programs; modify and correct problems;
Write reports and documents on evaluations regarding root causes and corrections of
systems failures;
Report formats required, volume of transactions, time requirements and cost constraints,
and need for security and access restrictions to determine hardware configurations;
Analyze information to determine, recommend, and plan layout for type of computers and
peripheral equipment, or modifications to existing equipments and systems, that will
provide capability for proposed project or work load, efficient operations, and effective
use of allotted space;
Enter data into the computer terminal, to store, retrieve and manipulate data for analysis of
system capabilities and requirements;
Test and install all new and updated applications for Medical and Medicare;
Set up all facilities for E-T AR (Electronic Filing Treatment Authorization Request) for
each facility using the Internet;
Set up all facilities as to new methods on billing Medical and Medicare through the
Internet;
Develop applications on patient's trust account for facilities;
Develop and maintain databases for each facility including information on hospitals,
doctors and other providers;
Maintenance of systems hardware and software.
The academic evaluation contained in the record reflects that the beneficiary has the equivalent of a Bachelor
of Science in Business Administration in Computer Information Systems from an accredited university in the
United States. The petitioner asserts that the proffered position is highly technical and requires a minimum of
a Bachelor's degree in Computer Science or a related field. The petitioner asserts further' that the
beneficiary's education qualifies her for the position.
To determine whether the position duties described above are those of a specialty occupation, the AAO first
considers the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A)(1) and (2): a baccalaureate or higher degree or its
equivalent is the normal minimum requirement for entry into the particular position; and a degree requirement
is common to the industry in parallel positions among similar organizations or a particular position is so
complex or unique that it can be performed only by an individual with a degree. Factors considered by the
AAO when determining these criteria include: whether the Department of Labor's Occupational Outlook
Handbook (Handbook), on which the AAO routinely relies for the educational requirements of particular
occupations, 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.
WAC 05 12551205
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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)).
The petitioner has characterized its position as that of a programmer analyst. The AAO therefore turns to the
Handbook's (2006-07 Edition) description of that occupation. The Handbook states on page 105, that,
''programmer-analysts are responsible for both the systems analysis and the actual programming work." The
Handbook states further on page 104, that computer programmers:
[W]rite, test, and maintain the detailed instructions, called programs, that computers must
follow to perform their functions. Programmers also conceive, design, and test local
structures for solving problems by computer.
Programmers write programs according to the specifications determined primarily by
computer software engineers and system 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 such as COBOL; an artificial intelligence language such as Prolog; or
one of the most advanced object-oriented languages, such as Java, C++, or ACTOR.
Many programmers update, repair, modify, and expand existing programs.
The proffered position duties described by the petitioner do not include writing, designing, testing, coding,
and implementing computer programs for the petitioner. The AAO therefore finds that the proffered position
does not qualify as a computer programmer position.
The Handbook describes the computer systems analyst occupation on page 116, and states in pertinent part
that:
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 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 ... that vary with the kind of organization.
In some organizations, programmer-analysts design and update the software that runs a
computer. Because they are responsible for both programming and systems analysis, these
workers must be proficient in both areas.
The Handbook discusses the computer systems analyst position's educational requirements on pages 116 and
117, and states in pertinent part that:
[W]hile 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. . . . Many employers seek
WAC 05 125 51205
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applicants who have at least a bachelor's degree in computer science, information science, or
management information systems (MIS) .... 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. . . . Employers usually look for people who have broad knowledge and experience
related to computer systems and technologies, strong problem-solving and analytical skills,
and good interpersonal skills.
In the present matter, the AAO finds that the described duties of the position are similar to those of a
computer systems analyst, as outlined in the Handbook. Ensuring the efficient use of the petitioner's systems,
monitoring and adjusting performance of systems, analyzing and developing software and troubleshooting
problems and other duties described by the petitioner closely resemble the duties of a computer systems
analyst. However, the position does not qualify as a specialty occupation. While a computer systems analyst
position may require a baccalaureate degree in a specialty, the information contained in the Handbook reflects
that a worker may enter the occupation with less than a baccalaureate degree, and that for those positions that
require degrees, the degree may be in a broad range of backgrounds.' Because the petitioner has failed to
establish that a specialty bachelor's degree is normally required for entry into the proffered position, the
petitioner has failed to establish that the proffered position is a specialty occupation under the criterion at 8
C.F.R. § 214.2(h)(4)(iii)(A)(1). See generally, Defensor v. Meissner, 201 F. 3d 384 (5 th Cir. 2000).
The petitioner also failed to establish that the proffered position qualifies as a specialty occupation under 8
C.F.R. § 214.2(h)(4)(iii)(A)(2), which states that a "[d]egree requirement is common to the industry in
parallel positions among similar organizations or, in the alternative, [that] 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."
To establish its degree requirement as an industry norm, the petitioner submitted several Internet job vacancy
announcements for programmer analyst positions in both related and unrelated industries. It is noted that the
vacancy announcements contain varying educational requirements. Some of the programmer analyst
positions advertised require a bachelor's degree in computer science or a related field. However, just as many
of the advertised positions contain a general, non-specialized bachelor's degree requirement. Furthermore,
one of the announcements asked for a bachelor's degree or equivalent educational/certificate and work
experience, and several of the positions advertised reflected simply that the employer preferred, but did not
require, a general bachelor's degree. The job vacancy announcements submitted on appeal thus fail to
demonstrate that a specialty degree requirement is common to the petitioner's industry in parallel positions
among similar organizations. Rather, the vacancy announcements confirm the Handbook's statement that,
1 It is noted that the Handbook's educational requirements for a computer programmer also reflect that a
worker may enter the occupation with less than a baccalaureate degree. Specifically, the Handbook states on
page 105:
Although there are many trammg paths available for programmers, mainly because
employers' needs are so varied, 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 2-year degrees or certificates.
WAC 05 12551205
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depending on the needs of the employer, the educational requirement for a programmer analyst position
ranges from a two-year degree or certificate requirement, to a technical degree or degree in a variety of majors
requirement, to a requirement for a bachelor's degree in computer science, information science or
management information systems.
The evidence contained in the record also fails to establish that the proffered position is so complex or unique
that it can be performed only by an individual with a degree in computer science or a related filed, as set forth
in the second part of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2). The petitioner claims it is a twelve-employee company
that provides nursing home management services to eleven convalescent hospital and health care
organizations in the Los Angeles, California area. Although the record establishes that the petitioner's 2004
gross earnings were $1,264,891, the record lacks independent evidence of the contracted services that the
petitioner provides to the eleven convalescent hospital and health care companies that the petitioner services.
The record also contains no information relating to the needs or operational aspects of the companies that the
petitioner services. Simply going on record without supporting documentary evidence is not sufficient for the
purpose of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165
(Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). The
AAO requires information about the specific duties of a proffered position in the context of the petitioning
entity's business operations, in order to make a determination regarding the nature of that position and its
degree requirements, if any. The present record fails to offer a detailed, meaningful description of the
beneficiary's duties as they relate to the petitioner's, or its clients' businesses. The AAO is therefore unable
to assess whether the proffered position's duties are so complex and unique that they can only be performed
by an individual with a degree in computer science or a related field.
Because the proffered position is a newly created position, the petitioner has additionally failed to establish
that the proffered position qualifies as a specialty occupation under the third prong of 8 C.F.R. §
214.2(h)(4)(iii)(A), which states that, "the employer normally requires a degree or its equivalent for the
position. "
The petitioner also failed to establish that the proffered position qualifies as a specialty occupation under 8
C.F.R. § 214.2(h)( 4)(iii)(A)( 4), which states that, "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 previously discussed, the present record fails to offer a detailed,
meaningful description of the beneficiary's duties as they relate to the petitioner's, or its clients' businesses.
The description of the proffered position duties is thus too generic to determine the specific tasks that the
beneficiary would perform. The record contains insufficient evidence of the contracted information services
that the petitioner provides to its clients. The generic description of duties of record without further context
makes it impossible to assess whether the proffered position's duties meet the specialized and complex
threshold of the fourth criterion contained in 8 C.F.R. § 214.2(h)(4)(iii)(A). Accordingly, the petitioner failed
to demonstrate that the proffered position is a specialty occupation under the requirements at 8 C.F.R. §
214.2(h)(4)(iii)(A)( 4).
Based on the above discussion, the AAO finds that the petitioner has failed to establish that the proffered
position meets the requirements of a specialty occupation as set forth in section 241 of the Act, and at 8
C.F.R. § 214.2(h)(4)(iii)(A). The burden of proof in nonimmigrant visa proceedings rests solely with the
WAC 05 12551205
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petitioner. See section 291 of the Act, 8 U.S.C. § 1361. The petitioner has not sustained its burden of proof
in the present matter. The appeal will therefore be dismissed.
ORDER: The appeal is dismissed. The petition is denied.