dismissed H-1B Case: Computer Science

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
PUBLIC copy 3% ul, 
FILE: LIN 04 164 54874 Office: NEBRASKA SERVICE CENTER Date: JUN 1 6 20% 
PETITION: 
 Petition for a Nonirnmigrant Worker Pursuant to Section lOl(a)(lS)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 5 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 
LIN 04 164 54874 
Page 2 
DISCUSSION: The director of the Nebraska Service Center denied the nonimmigrant visa petition and 
the matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. The petition will be denied. 
The petitioner is a computer consulting firm, was established in 1999, has annual gross income of 
$350,000, and 3 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. 5 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: (I) Form 1-129 and supporting documentation; (2) 
the director's request for evidence (RFE); (3) the petitioner's response to the director's RFE, dated 
October 4, 2004; (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 following statutory and regulatory requirements. 
Section 214(i)(l) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 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 $ C.F.R. 5 214.2(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. 5 214.2(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; 
LIN 04 164 54874 
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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. g. Defensor v. Meissner, 201 F.3d 384 (Sh 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 seeking 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 as follows; 
Existing and proposed systems and devices, computer programs and systems, as well as related 
procedures to process data; 
Prepare charts and diagrams to assist in problem analysis and submit recommendations for 
solutions; 
Prepare program specifications and diagrams and develop coding flowcharts; and 
Encode, test, debug and install operating programs and procedures in conjunction with user 
development. 
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The beneficiary's daily task activities would include: 
Design - 50% 
Support - 30% 
The director found that the proffered position could not be considered a specialty occupation because 
the petitioner failed to submit contracts between it and its clients. At the time of filing, the petitioner 
indicated that the beneficiary would be working at its offices in Columbus, Ohio. 
the RFE the petitioner stated that it negotiated a master service agreement with 
staffing firm, and that the 
 services in Tampa, Florida, for the University 
of South Florida, a client of 
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 originate with the employment agency that seeks to hire the beneficiary for 
employment with the agency's client. Defernor v. Meissner, 201 F. 3d 384 (5" Cir. 2000). 
Although the record contains an agency service agreement between the petitioner and - 
Inc., the record does not contain a comprehensive description of the beneficiary's proposed duties from 
an authorized representative of the University of South Florida where the beneficiary will be providing 
the services. With its response to the RFE the petitioner submitted a letter from the University of South 
Florida, indicating the existence of a contract for the beneficiary's services. However, the letter does 
not include a comprehensive description of the job duties, and therefore, it cannot be determined that 
the work that the beneficiary will perform at the University of South Florida 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. 5 214.2(h)(4)(iii)(A). 
'8 
To determine whether the duties described are those of a specialty occupation, the AAO first considers 
the criteria at 8 C.F.R. 9 214.2(h)(4)(iii)(A)(I)& (2): a baccalaureate or higher degree or its equivalent 
is the normal minimum requirement for entry into the particular position; Factors considered by the 
AAO when determining these criteria 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. Mim. 
1999) (quoting Hird/Blaker Corp. v. Suva, 7 12 F. Supp. 1095, 1 102 (S.D. N. Y. 1989)). 
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 
LIN 04 164 54874 
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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 Internet version of the Handbook's 
description of computer programmer, at http://www.bls.gov/oco/ocosll0.htrn, 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 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 a flight 
simulator. Although simple programs can be written in a few hours, 
programs that use complex mathematical formulas whose solutions can 
only be approximated or that draw 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 
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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. 
Employers primarily are interested in programming knowledge, and 
computer programmers can become certified in a programming 
language such as C+ + or Java. College graduates who are interested 
in changing careers or developing anbarea of expertise also may return 
to a 2-year community college or technical school for additional 
training. In 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 where 
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. 5 214.2(h)(4)(iii)(A)(l) 
LIN 04 164 54874 
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- 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. 5 214.2(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. 
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 Soflci, 22 I&N Dec. 158, 165 
(Comm. 1998) (citing Matter of Treasure Craj? of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
No other evidence of record establishes the first prong of the second criterion. Therefore, the 
petitioner has failed to establish that a degree requirement is common to the industry in parallel 
positions among similar organizations. 
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 appeaI brief, the petitioner simply asserted that the Handbook indicates that a 
degree is required by most employers for programmer analyst positions, and stated that similar to other 
programmer analysts the beneficiary will plan, develop, test, and document computer systems 
applications software. 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. Therefore, the record also fails to establish that the position qualifies as a 
specialty occupation under the second prong at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(Z) - the position is so 
complex or unique that it can be performed only by an individual with a degree. Accordingly, the 
petitioner has not established its position as a speciajty occupation under either prong of the second 
criterion. 
The AAO next considers the criteria at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(3) and (4): 
 the employer 
normally requires a degree or its equivalent for the position; and 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. To determine the petitioner's ability to meet the third 
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. 
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The fourth criterion at 8 C.F.R. 8 214.2(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 a general 
description of the type of work to be performed, rather than a description of the proffered position's 
duties as they relate to the petitioner's business or to the business of the beneficiary's ultimate work 
location at the University of South Florida. 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 requirements at 8 C. F.R. 5 214.2(h)(4)(iii)(A)(4). 
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 set forth at 8 C.F.R. 5 
2 14.2(h)(4)(iii)(A). 
Beyond the decision of the director, the Labor Condition Application (LCA) submitted for the Tampa, 
Florida work location was not timely filed. At the time of filing the petition the petitioner submitted an 
LCA valid for Columbus, Ohio. In response to the RFE, the petitioner submitted an LCA, certified 
after the filing date of the petition, for Tampa, Florida. 8 C.F.R. 5 214.2(h)(4)(B)(I) requires that an 
LCA be certified prior to filing the petition. As the LCA for the intended work location, Tampa, 
Florida, was certified subsequent to the petition's filing date, it cannot be accepted. For this additional 
reason, the petition may not be approved. 
For the reasons related in the preceding discussion, the petitioner has failed to establish that the 
proffered position meets the requirements for a speciglty 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. 5 1361. The petitioner has not sustained that burden. 
ORDER: 
 The appeal is dismissed. The petition is denied.