dismissed H-1B Case: Computer Science

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
FILE: LIN 04 21 1 53227 Office: NEBRASKA SERVICE CENTER Date: AUG 1 8 2006 
IN RE: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(l 5)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. $ 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 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 
LIN04211 53227 
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DISCUSSION: The director of the Nebraska Service Center denied the nonirnmigrant visa petition and the 
matter is now before the Adrmnistrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petition will be denied. 
The petitioner is a computer consulting and staffing firm, was established in 1998, and states on the 1-129 
that it has annual gross income of $2 million, 25 employees. It provides contract employees for software 
development and implementation services to clients. It seeks to employ the beneficiary as a full-time 
programmer analyst pursuant to section lOl(a)(lS)(H)(i)(b) of the Immigration and Nationality Act (the 
Act), 8 U.S.C. § 1 lOl(a)(lS)(H)(i)(b). The director denied the petition based on his determination that 
the proffered position was not a specialty occupation. 
The record of proceeding before the AAO contains: (1) Form 1-129 and supporting documentation; (2) 
the director's request for evidence (WE); (3) the petitioner's response to the director's RFE, dated 
February 10" 2005; (3) the director's denial letter; and (4) Form I-290B, with the petitioner's brief and 
new and previously submitted evidence. 
The issue before the AAO is whether the proffered position qualifies as a specialty occupation. To meet 
its burden of proof in this regard, a petitioner must establish that the job it is offering to the beneficiary 
meets the follo&ng statutory and regulatory requirements. 
Section 214(i)(l) of the Immigration and Nationality Act (the Act), 8 U.S.C. 9 1184(i)(l) defines the term 
"specialty occupation" as one 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 8 C.F.R. § 214.2(h)(4)(ii) as: 
An occupation which requires theoretical and practical application of a body of highly 
specialized howledge in fields of human endeavor including, but not limited to, 
architecture, engmeering, 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: 
(I) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
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(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 above criteria to mean not 
just any baccalaureate or higher degree, but one in a specific specialty that is directly related to the 
proffered position. 
In order to determine whether a position is a specialty occupation, CIS must examine the ultimate 
employment of the alien. 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& Cir. 2000). The critical element is 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, as required by the 
Act. 
The petitioner states that it is seelung the beneficiary's services as a Programmer Analyst. Evidence of 
the beneficiary's duties includes: the Form 1-129, and petitioner's response to the RFE. The petitioner 
indicated the duties of the proposed position and the percentage of time allocated to each function as 
follows: 
Analyze project requirements from the business requirement document, specifications, 
system limitations and software preference for clients; work closely with clients to 
formulate a solution. Analyze system resources, software resources and finalize the 
control flow of the software system. (30%); 
Design and document software modules. Based on the pre-documented project plan, 
divide the project architecture into modules and document the modular approach for 
every module showing flow charts and sequencing diagrams. Document the high-level 
system design, coding conventions and standards and version compatibility of modules. 
(25%); 
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Coding of software system. Write software programs with appropriate software and 
language according to the coding conventions and standards provided in design 
documentation. Use database management systems as and when required by the system. 
Provide efficient reports [as] a user outputs to see if the system is performing to the level. 
(30%); and 
Test developed software modules as per the standards of business requirements 
documents and specifications. Perform the module (unit) testing as well as integrated 
system testing. Identify and report the bugs, if found, and debug the modules. (15%). 
The director found that the proffered position could not be considered a specialty occupation because the 
petitioner failed to submit contracts between the petitioner and its clients. At the time of filing, the 
petitioner indicated that the beneficiary would be worlung at its offices in Utica, Michigan. 
CIS interprets the statute and the regulations to require the petitioner to show that the entity ultimately 
employing the beneficiary requires a bachelor's degree for all employees in that position. The degree 
requirement should not orignate with the employment agency that seeks to hire the beneficiary for 
employment with the agency's client. Defensor v. Meissner, 201 F. 3d 384 (5& Cir. 2000). 
The AAO notes that the record does not contain any agreement for services between the petitioner and 
any of its clients. The record does not contain a comprehensive description of the beneficiary's proposed 
duties from an authorized representative of any of the petitioner's clients and therefore, it cannot be 
determined that the work that the beneficiary will perform for the petitioner's clients will require the 
highly specialized knowledge of a 4-year degree or whether it will qualify as a specialty occupation under 
any of the criteria at 8 C.F.R. 3 214.2(h)(4)(iii)(A). 
The AAO turns first to a consideration of the criterion at 8 C.F.R. 214.2(h)(4)(iii)(A)(I), that a 
baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the 
particular position. The AAO finds that the duties of the position, though generally described, are 
comparable to those of a computer programmer. The 2006-2007 Handbook's description of computer 
programmer, states: 
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. Many 
technical innovations in programming-advanced computing technologies and 
sophisticated new languages and programming tools-have redefined the role of a 
programmer and elevated much of the programming work done today. Job titles and 
descriptions may vary, depending on the organization. In this occupational statement, 
computer programmers are individuals whose main job function is programming; this 
group has a wide range of responsibilities and educational backgrounds. 
Computer programs tell the computer what to do-which information to identify and 
access, how to process it, and what equipment to use. Programs vary widely depending 
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on the type of information to be accessed or generated. For example, the instructions 
involved in updating financial records are very different from those required to duplicate 
conditions on an aircraft for pilots training in e flight sir-ulator. Although simple 
programs can be written in a few hours, progarns "1 .t nlr * complex mathematical 
formulas whose solutions can only be approxim:.:cd or tSmx dr axd data from many existing 
systems may require more than a year of work. In most cases, several programmers work 
together as a team under a senior programmer's supervision. 
Many programmers update, repair, modify, and expand existing programs. When making 
changes to a section of code, called a routine, programmers need to make other users 
aware of the task that the routine is to perform. . . . 
Programmers test a program by running it to ensure that the instructions are correct and 
that the program produces the desired outcome. If errors do occur, the programmer must 
make the appropriate change and recheck the program until it produces the correct 
results. This process is called testing and debugging. . . . 
Computer programmers often are grouped into two broad types-applications 
programmers and systems programmers. Applications programmers write programs to 
handle a specific job, such as a program to track inventory within an organization. They 
also may revise existing packaged software or customize generic applications which are 
frequently purchased from vendors. Systems programmers, in contrast, write programs to 
maintain and control computer systems software, such as operating systems, networked 
systems, and database systems. These workers make changes in the instructions that 
determine how the network, workstations, and central processing unit of the system 
handle the various jobs they have been given and how they communicate with peripheral 
equipment such as terminals, printers, and disk drives. Because of their knowledge of the 
entire computer system, systems programmers often help applications programmers 
determine the source of problems that may occur with their programs. 
Regarding training of computer programmers, the Handbook states: 
Although there are many training 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. The associate degree is a widely used entry-level credential for prospective 
computer programmers. Most community colleges and many independent technical 
institutes and proprietary schools offer an associate degree in computer science or a 
related information technology field. 
LIN 04 211 53227 
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Employers primarily are interested in programming knowledge, and computer 
programmers can become certified in a programming language such as C++ or Java. 
College (.raduate~ rr.ho are interested in changing careers or developing an area of 
e~?:T'~~?ie 21s' t m?;?.g' return to a 2-year community college or technical school for 
addit*oxml traintry. i+g the absence of a degree, substantial specialized experience or 
expertise may be needed. Even when hiring programmers with a degree, employers 
appear to place more emphasis on previous experience. 
The Handbook indicates that a baccalaureate degree in a specialty is not normally required to enter the 
occupation. The Handbook indicates that some programmers may qualify for certain jobs with 2-year 
degrees or certificates. The 2-year degree is a widely used entry-level credential for prospective computer 
programmers. Because the petitioner has failed to provide a description of the duties from the client for 
whom the beneficiary will work, it cannot be determined whether a two-year or a four-year degree is 
required to perform the duties. Accordingly, the AAO finds that the petitioner has failed to establish the 
proffered position as a specialty occupation under the first criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(I) - 
a baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the 
particular position. 
The AAO now turns to a consideration of whether the proffered position may qualify as a specialty 
occupation under either of the prongs of the second criterion at 8 C.F.R. § 214.2(h)(4)(ii)(A)(2) - 
establish that a degree requirement is common to the industry in parallel positions among similar 
organizations, or that the proffered 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 this criterion include: whether the Department of 
Labor's (DOL) 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. Reno, 36 F. Supp. 2d 1 15 1, 1 165 (D. Minn. 1999) 
(quoting HirdBlaker Corp. v. Sava, 712 F. Supp. 1095, 1 102 (S.D.N.Y. 1989)). 
The AAO notes that the petitioner provided no documentation to establish that firms similar to the 
petitioner offering jobs similar to the proffered position employ individuals with a degree in the specialty. 
Going on record without supporting documentary evidence is not sufficient for the purposes of meeting 
the burden of proof in these proceedings. See Matter of Sofici, 22 I&N Dec. 15 8, 165 (Comm. 1998) 
(citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). No other evidence 
of record establishes the first prong of the second criterion. For instance, the petitioner has not submitted 
evidence from individuals, firms, or professional associations in the industry attesting to educational 
requirements common to the industry's recruiting and hiring practices for the type of position here 
proffered. Therefore, the petitioner has failed to establish that a degree requirement is common to the 
industry in parallel positions among similar organizations, as required by the first alternative prong of 
C.F.R. 4 214.2(h)(4)(ii)(A)(2). 
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Next, the petitioner has not satisfied the second alternative prong of C.F.R. § 214.2(h)(4)(ii)(A)(2) as the 
evidence of record does not establish that the position is so complex or unique that it can be performed 
only by a person with at least a bachelor's degree in a related specialty. 
As noted above, the petitioner has generally described duties normally performed by computer 
programmers. However, the duties of the proffered position, as listed, are so generic that they provide no 
meaningful description of the tasks that the beneficiary would perform for the petitioner or its clients on a 
daily basis. In its appeal brief, the petitioner asserts that the Handbook indicates that a degree is required 
by most employers for programmer analyst positions, and that similar to other programmer analysts, the 
beneficiary will plan, develop, test, and document computer systems applications software. As the 
evidence of record does not distinguish the proffered position as more complex than or unique from 
programmer analyst positions the Handbook indicates can be performed by persons with less than a 
bachelor's degree or equivalent in a specific specialty, the AAO finds the petitioner to have provided no 
evidence that would support a finding that the proffered position is so complex or unique that it can be 
performed only by an individual with a degree. Going on record without supporting documentary 
evidence is not sufficient for the purposes of meeting the burden of proof in these proceedings. See 
Matter of Soflci, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 
I&N Dec. 190 (Reg. Comm. 1972)). Therefore, the record also fails to establish that the position qualifies 
as a specialty occupation under the second prong at 8 C.F.R. 9 214.2(h)(4)(iii)(A)(2) - the position is so 
complex or unique that it can be performed only by an individual with a degree. 
The AAO next considers the criterion at 8 C.F.R. 214.2(h)(4)(iii)(A)(3): the employer normally 
requires a degree or its equivalent for the position. To determine the petitioner's ability to meet this 
criterion, the AAO normally reviews the petitioner's past employment practices, as well as the histories, 
including names and dates of employment, of those employees with degrees who previously held the 
position, and copies of those employees' diplomas. In the instant case, the petitioner did not provide any 
such information. Accordingly, the petitioner failed to establish its normal hiring practices with regard to 
the proffered position and has not established it as a specialty occupation on this basis. 
The fourth criterion at 8 C.F.R. 214.2(h)(4)(iii)(A)(4) requires that a petitioner establish that the nature 
of the specific duties of the position is so specialized and complex that the knowledge required to perform 
them is usually associated with the attainment of a baccalaureate or higher degree. On appeal, the 
petitioner contends that the duties of the proffered position satisfy the criterion's requirements. The AAO 
does not agree. 
As previously noted, the AAO requires information regarding the specific duties of a proffered position, 
as well as the nature of the petitioning entity's business operations, to make its determination regarding 
the position's degree requirements, if any. In the instant case, the record offers only a general description 
of the type of work to be performed, rather than a description of the actual work that the beneficiary 
would perform. As specified in the petitioner's duty descriptions copied earlier in this decision, the 
petitioner described the proposed duties in generalized terms that do not establish that they are any more 
specialized and complex than programmer analyst duties that the Handbook indicates are performed by 
LIN04211 53227 
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persons with less than a bachelor's degree in a specialty. As the petitioner has provided no description of 
the specific tasks to be performed by the beneficiary, the record contains no evidence to establish the 
specialized and complex nature of those tasks. Therefore, the proffered position has not been established 
as a specialty occupation under the ,equirements at 8 C.F.R. 4 214.2(h)(4)(iii)(A)(#). 
For the reasons related in the preceding discussion, the petitioner has failed to establish that the proffered 
position meets the requirements for a specialty occupation. Accordingly, the AAO shall not disturb the 
director's denial of the petition. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
$ 136 1. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed. The petition is denied.