dismissed H-1B Case: Computer Science

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
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U. S. Citizenship 
and Immigration 
FILE: 
 LIN 04 179 52314 
 Office: NEBRASKA SERVICE CENTER Date: JUN 1 6 2006 
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 10 l(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 04 179 52314 
Page 2 
DISCUSSION: The director of the Nebraska Service Center denied the nonirnrnigrant 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 firm, was established in 2003, has annual gross income of $500,000, 
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 
10 1 (a)(l 5)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 9 1 10 1 (a)(l 5)(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 (RFE); (3) the petitioner's response to the WE, dated September 27, 2004; (3) 
the director's denial letter; and (4) Form I-290B, with the petitioner's brief 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. 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 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. fj 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; 
(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; 
LIN 04 179 523 14 
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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. 
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 (5fi 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 director's request for evidence 
(RFE). 
At the time of filing, the petitioner indicated that the beneficiary would consult with management, and evaluate 
problems and needs for future expansion and hardwarelsoftware interface and machine operation optimization. 
The specific duties and the approximate work time allocated to each duty of the proposed position are as 
follows: 
Analyze client's software and software systems to automate process - 15%; 
Designing software to meet client's needs - 10y0; 
Creating and maintaining rational database management systems in a cliendserver environment 
using Oracle and other data base design - 10%; 
Validating, calculating and other database design - 15%; 
Engineering modifications and solutions to client's software system problems - 15%; 
Implement cliendserver communication protocol as application programming interface - 10%; 
Use software tools, including C, C++, Java, Oracle, Weblogic - 15%; and 
Update latest web technologies such as EJB, and JSP - 10%. 
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To determine whether the duties described at the time of filing are those of a specialty occupation, the AAO 
first considers the criteria at 8 C.F.R. 214.2(h)(4)(iii)(A)(l)& (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 1151, 1165 (D. Minn. 1999) (quoting Hird/Blaker Corp. v. Sava, 712 F. 
Supp. 1095, 1 102 (S.D.N.Y. 1989)). 
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 and in response the RFE, 
the petitioner indicated that the beneficiary would be working at its office in Sprin 
to the RFE, the petitioner submitted a copy of a subcontractor agreement with 
computer consulting and staffing firm, indicating that the petitioner's firm 
The petitioner indicated that the beneficiary would perform 
services on the 
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, 20 1 F. 3d 3 84 (5" Cir. 2000). 
Although the record contains a subcontractor agreement between the petitioner and- 
the record does not 
authorized 
will provide services to 
determined that the work that the beneficiary will perform fo 
 .'s client will qualify as 
a specialty occupation. The information submitted abpdoes not indicate the work the 
beneficiary will perform under the subcontract. Thus it cannot be determined whether a two or four-year 
degree would be required to perform the services, or that the position is a specialty occupation. 
The AAO turns first to a consideration of the criterion at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(l), 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 Internet version of the Handbook's 
description of computer programmer, at http: //www.bls.gov/oco/ocos 1 10. htm, 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 
LIN 04 179 52314 
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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 
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 
LIN 04 179 523 14 
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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 an area 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 prbgrammers 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. 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 AA0 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 
LIN 04 179 523 14 
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proof in these proceedings. See 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)). 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 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 on a daily basis. The petitioner provided no 
documentation to establish the complexity of the position. In its appeal 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. 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. Accordingly, the petitioner has not established 
its position as a specialty occupation under either prong of the second criterion. 
The AAO next considers the criteria at 8 C.F.R. 3 214.2(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. 
The fourth criterion at 8 C.F.R. 3 214.2(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 
petitioner's business or to the business of the beneficiary's ultimate work location for 
clients. The informational materials o do not indicate what 
perform. As the petitioner has 
 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. 9 
2 14.2(h)(4)(iii)(A)(4). 
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For the reasons related in the preceding discussion, the petitioner has failed to establish that the proffered 
position meets any of the requirements for a specialty occupation set forth at 8 C.F.R. 
 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. 9 
136 1. The petitioner has not sustained that burden. 
ORDER: 
 The appeal is dismissed. The petition is denied.