dismissed H-1B Case: Computer Science

U.S. Department of Homeband Sesurity 
20 Mass, &TI. A3042, 425 1 Street. K.W. 
Wash~ngton, DC 20529 
'US. Citizenship 
and Immigration 
FILE: WAC 03 112 501 17 Ofice: CALIFORNIA SERVICE CENTER Date: \xT 3 8 z@@g 
PETITION: Petition for a Nonimmigrant Work Pursuant to Section 10l(a)(B)(i)(b) of the immigration 
and Nationality Act, 8 U.S.C. 9 1 lOl(a)(l5)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in you case. All documents have been zetumed do 
the office that origi~?aIly decided your case. Any further inquiry mus9je made to that office. 
Robert P. Wiernann, Director 
Admirisk-ative Appeals Offnce 
WAC 03 112 50117 
Page 2 
DISCUSSION: The director of the service center denied the nonim~grant visa petition md the matter 1s now 
Sefore the Admnistrabve Appeals Office (M0) on appeal. The appeal w:ll be chsmassed. The petnt~on will be 
denled. 
The petitioner is a. corporation that operates adult residential care homes for persons with developmental 
disabilities. The petitioner seeks to employ the beneficiary in a position to which the petitioner ascribes the 
job title "systernslprogram analyst." The petitioner therefore endeavors to classify the beneficiary as a 
nonimigrant worker In a specialty occupation pursuant to section IOl(a)(lS)(H)(i)(b) of the Immigration and 
Nationality Act, 8 U.S.C. 5 1 101(a)(lS](B)(i)(b). 
The director denieE the petition on the basis that the petitioner had failed to establish that the proflered 
position meets the requirements of a specialty occupation as set forth at 8 C.F.R. $214.2(h)(4)(iii)(A). A 
critical basis of the director's decision was his determination that the proffered position substantialf8?y 
comports with the network or computer systems adaninistrator occupational category as described in the 
Department of Labor's Occupational Oudook Handbook (Handbook), which the !A0 recognizes as an 
authoritative somce on th duties and educational requirements of a wide variety of occupations, The director 
noted: 
As shown in the [Handbook], although a baccalaweate level of training is preferred, the position 
of network or computer systems administrators is an occupation that does not require a 
baccalaweate level of education in a specific specialty as a normal, minimum for en?q into the 
occupation. [Underlining in the origna1.j 
(Decision, at page 5) 
On appeal, counsel asserts that the evidence of record establishes the specialty occupation nature of the 
proffered positio~. Counsel contends, in part, that the job description and business needs of the petitioner 
""provide persuasive evidence that the pzoffered position is consistent with a systems analyst" position. As 
indicated in the following paragraph, counsel also contends that system analyst positions are specialty 
occupation positions: 
The Handbook recognizes the position of a systems analyst as a specizlty occupation by 
explicitly stating that most employers prefer job applicants to possess a minimum of a bachel~r's 
degree. Because the primary furaction of a systems analyst is to design hardware and software, 
the qualified candidate must have formal training in computer science, includi~g software 
design, network configuration, and computer hardware. Such expertise can usually only be 
obtained though a bachelor's deghee in computer science, infomation science, management 
information systems or i~ a related field. Because [the petitioner] has demonstrated that the 
proft'ered position is equivalent to a systems analyst, which qualifies as a specialty occupation, 
[the beneficiary] is elignble for the 1-129 petition. 
The director's decision to deny the petition was correct. The A40 bases its decision gpon its consideration of 
the entire record of proceeding before it, which includes: (1) the petitioner's Fonn 1-129 and the supporting 
documentation filed with it; (2) the director's IPFE; (3) the materials submitted in response to the WE; (4) the 
WAC 03 112 50117 
Page 3 
director's denial letter; and (53 the Fom I-290B as annotated by counsel, and counsel's brief md 
accompanying exhibits. 
Section PBB1(a)(15)(HQ(i)(b) of the Act, 8 U.S.C. 3 I 10 1 (a)(] 5)(H)(i)gb), provides a nonimmngant 
classnficahon for &lens who ase com:ng temporarily to the Unnted States to perform services in 2 specialty 
occupation. 
Section 214(i)(l) of the Act, 8 U.S.C. 3 B 184 (i)(1Q9 defines the tern "specialty occupatnan" as an occclpat~on 
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. 
Thus, it is clea: that Congress intended this visa classification only for aliens who are to be employed in an 
occupation that reqxres the theoretical and practical application of a body of highly specialized howledge 
that is conveyed by at least a baccalaureate or higher degree in a specific specialty. 
Consonant with section 214(1)(l) of the Act, the regulation at 8 C.F.R. 5 214.2(h)(4)(ii) states that a specialty 
occupation means an occupation 
which [I] requires theoretical and practlcak application of a body of highly specialized 
howled, 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 ofa 
bachelor's &gee or higher in a speclJic specialty, or its equivalent, as a zninimurn for entry into 
the occaspation in the United States. (Italics added.) 
Pw-suant to 8 C.F.R. 214.2(h)(4)(nil)(AQ9 to qualnfy as a specnalty occupatnon, the pos~tion must meet one of the 
following cntena: 
(1) A baccalaureate or higher degree or nts equ~valent is normally he xnnlrnurn reqmrement 
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 individtdal with a degree; 
(3) The employer normally requires a degree or its equivalent Ior the position; or 
WAC 03 112 501 17 
Page 4 
4 The nature of the specific duties is so specialized and complex that knowledge required 
to perfom the duties is usually associated with the attainment of a baccalaureate or 
higher degree. 
Citizenship and Immigration Services (CIS) has consistently interpreted the tern "degree" in the criteria at 
8 C.F.R. 5 21$.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. Applying this standard, CIS regularly approves 
B-PB petitions for qualified aliens who are to be employed as engineers, computer scientists, certified public 
accountants, college professors, a~d other such professions. These occupations all require a baccalaureate 
degree in the specific specialty as a minimum for entry into the occupation and fairly represent the types of 
professions that Congress contemplated when it created the B-1B visa category. 
To detemine whether a pa&icular 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 mcst examine the ultimate employment of the 
alien, and determine whether the position quali5es as a specialty occupation. CJ: Defensor v. Meissnev, 201 
F. 3d 384 (5th Cir. 20009. The critical element is not the title of the posit¶on 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 baccalamezte or higher degree in the speci5c specialty 
as the minimum for entry into the occupation, as required by the Act. 
The petatloner operates snx homecare facnl~t~es for the devePopmenta1ly dnsabled. The February 6, 2003 ietter 
of support that the pet~t~oner filed wnth the Foam 1-129 indacates that the beneficnary will be employed as aE 
an-house systems analyst to "deszgn a [computer] system that can be znterfaced so that ail of the ~nfomat~on as 
samultaneously availabdble at all of the locat~ons where a computer terminal IS set up," to tram; the petlt~oner's 
employees naa the use of the coaputer software system, to "make any necessary correctaons to fac:l~tate the 
ease of operat~on," and to 66sirnpl~fy and orgamze oa complex system oE dally record keep~ng and ensure a 
qdallty computer system." The Better also states: 
[I]t ns v~tal:y amportant that we hire a systems analyst/prograer to analyze the specafic needs 
of the busmess and locate and design a system to meet the spec~fic app?lcabons of ow oS5ces. 
[The beneficiary] wall analyze om business stmctwe, persome:, methods of services and wofi 
programs and wall devase a system to minlmze waste md nncrease produchon of servnces whale 
reducnng costs and a~tomatmg our operat~ons. [The bbeeficlary] will develop programs so as to 
keep records regard~ng quarterly reports, accomtmg records, blllnng records, ~nventory, payoll, 
etc. accordnng to om specnficatmns and standards for om computer syste-n wh~ch w?? make oa 
operation run nore effic~ently and decrease man hours. [The beneficiary] w~ll correct pogam 
errors that anse by altenng the program, maantam the mnte-ty of the databases withan the system 
along w~th all of the assoc~ate[d] files; verify mtegnty of the network system; and maintam the 
computer hardware n.e. rnsnltors, hard disk, mother board, ?ranters, senal cards, neema1 and 
extma! d~sk drnves. 
WAC 03 112 501 17 
Page 5 
Counsel's letter oh'reply to the WE includes this outline of the percentages of worktime that :he beneficiary 
would devote to various activ~ties: 
18% Analyze requirements, procedures, and problems to automate processing and 
improve existing systems; 
10% Confer with personnel to ascertain requireme3ts for new and enhanced automated 
facilitaes; analyze current operational procedures; 
20% Provide analytical support and write specifications to effectively maintain, enhance, 
and develop automated systems consistent w;th user needs; 
10% Design new applications and enhancements to mtomated systems; 
18% Promote efficient user utilization of systems developed; 
10% Write detailed descriptions of user needs, program functions, and steps required to 
develop or rnodi$l computer programs; 
10% Review computer system capab'oillaties, workflow, and scheduling Pimitations to determine nf 
program change is possible within existing system[;] 
18% @on;duct research to define problems and provide solutions; and 
18% Provide technical support and necessary training 
The MO concurs with counsel that the evidence sf record about the proffered position and its proposed duties 
accords with the systems analyst occupational category as described in the Handbook. However, as discussed 
below, the evidence does not provide a factual basis for finding that the proffered position qualifies as a specialty 
occupation mder any criterion of 8 C.F.R. 5 214.2(h)(4)(iii)(A). 
Tie petitioner has not satisfied the criterion at 8 C.F.R. $ 214.2(h)(4)(iii)(A)(I)2 which assigns specialty 
occupation status to a position for which the normal minimum entry requirement is a baccalaureate or higher 
degree, OT the equivalent, in a specific specialty closely related to the position's duties. 
Contrary to comnsel's view, the Handbook does not ~nd~cate tiat employers of network or computer systems 
1 analyst posataons normally requlre a bachelor's deg-ee, or the equ~valent, m a spec~fic specialty. Counsel s 
couect ln notnng that the Handbook expl:citly states that most employers prefer job appl~calmds to possess a 
m:r~naum of a bachelor's degree. However, the Handbook's ~ecognataon sf a hmng preference zmong most 
erployers IS not evndeence that most employers normally reqare a bachelor's degree, or ats eqmvalent, an a 
spec~fic specnalty as a rninmum credentaal for hilnng One of the Slgnlficant Po~nts mtroducmg the Handbook's 
1 The PA0 consulted the 2004-2005 edition of the Handbook. 
WAC 03 B 12 501 17 
Page 4 
narrative in the section on Computer Systems Analysts, Database Administrators, and Connputa Scientists is: 
"education requirements range from a 2-year degree to a graduate degree." The first paragraph mder this 
section's subheading "Training, Other Qenalifications, and Advancement" includes ths statement indicative of the 
fact that a bachelor's degree in a specific specialty is not a noma! hiring requirement: 
[W]hn:e there is no un~versally accepted way to prepare for a gob as a systems aria-yst, 
coxputer scaent;st, or database admm~strator, most employers place a premium on some 
formal college educat~on. A bachelor's degree IS a prerequaslte for many gobs; however, 
some jobs may requlre only a 2-year degree. Relevant work ex2eraence also IS very 
~mpotant. For .;me tech~cally complex jobs, persons w~th graduate degrees we preferred. 
Neather the Handbook nor any other emdence of record substantiates comsel's statements on appeal and earlier m 
the record to the effect that persons cannot perform systems analyst work wnthout at least a bashelm's degree in 
conpenter sclence, nnfomahon sclence, management tnfomatlon systems, or a reaated field. Co~ng on record 
wlehout sqportlng documentary evidence IS not suffic~ent for purposes of rneet~ng the burden of proof in 
tkse proceed~ngs. Matter of SofJici, 22 I&N Dec. 158, 155 (Cornm. 1998) (cating Matter ofTreasure CrseJEI of 
Gallfor~ka, 14 I&N Dec. 190 (Reg. Comrn. 1972)). Without docurnectary evidence to support the cIanm, the 
asserhons of counsel wall not satasfy the pehtionerk burden of proof. The unsupported assertaons of comsei 
do not const~tute evdence. Matter ofObalgbena, 19 I&W Dec. 533, 534 (BX 1988); Idsetter of Laureans, 19 
H&N Dec. 1 (BM 1983); Matter ofRamirez-Sanchez, 17 I&N Dec. 503, 506 (BH 1980). 
Contrary to comsel's view (see, e.g., paragraph 2 ofpage 2 of comsel's letter of reply to the RFE), the few job 
vacancy amomcements submitted into the record do not "show" that "the requi~znent for Systems Analysts to 
have a bachelor's degee is the nomal minim requirement for the position." QU~derlining in the origna!.) 
The advertisements, which specify a bachelor's or a four-degree without specifying an academic major or area of 
concentration, are consistect with the Handbook's infomation about the wide range of academic credentials that 
are acceptable in &e systems analyst occupation. The advedkements, however, are inconsistent with counsel's 
sWement tht system analyst work requires at Peast a bachelor's degree in computer sciexe, infomatio~ 
science, mmagernent information systems, or a related field. 
As the evidecce fails to establish that the duties of the proffered positaon comport with those of any 
occupation that nomallgr requires at least a bachelor's degree, or its equivalent, in a specific specialty, the 
petitioner has not satisfied the criterion at 8C.F.R. fj 214.2(h)(4)(iii)(A)(I)~ 
The petitioner has not satisfied the first alternative prong of 8 C.F.R. fj 214.2(h)(4)(iii)(A)(2), which is for a 
position with a requirement for at least a bachelor's degree in a specific specialty that is common to the 
petftioner's industry in positions that are both (I) parallel to the proffered position and 42) located in 
orgznizations that are similar to the petitioner. 
h detennimng whether there IS such a cormon degree req~nrernent, factors often cons~dered by CIS mnclude: 
whether the Handbook reports that the ~ndustny requlres a degee; whether the mdustry's profess~onal assoc~atlon 
has made a degree a m~nnmuna enhy requ~rement; and whether letters or affidavits from fims or mdrwdualis in the 
mnduslpy attest that such fims "routmely employ and recr~~t only degreed md~vlduals." See Shanfl, Inc v. Reno, 
WAC 03 112 50117 
Page 7 
36 F. Supp. 2d 1151, 1165 (D.Minn. 9999) (quoting Hivd/Blakev Corp. v. Sava, 771 IFF. Sxpp. 1095, 1102 
(S.D.N.Y. 1989)). 
As earlia discussed, fie petitioner has not established that the proffered position is one for which the Handbook 
reports an industry-wide requirement for at least a bachelor's degree in a specific specialty. The petitioner has not 
submitted attestatnons from other persons or fims in the industry or from a professional association that the 
position is one for which there is a routine practice of recruiting anzd hiring only persons with at lease a bachelor's 
degree in a specific specialty. The job vacancy advertisements have no probative value. As earlier discussed, 
they do not specify a degree in a specific specialty. Also, the evidence of record does not establish that the 
advertisers as similar to the petitioner, or that the advertised positions are parallel to the one proffered here. 
The criterion of 8 C.F.R. 9 214.2(h)(4)(iii)(A)(3) is not a factor: as the position is being offered for the first 
time, the petitioner cannot present evidence to show a prior history of hiring only persons with at least a 
bachelor's degree in a specific specialty. 
The evidence of record does not establish either that this particular position is SO complex or mique that it can 
be performed only by an indiviclal with a degree (so as to satisfy the second alternative prong of 8 C.F.R. 
214.2(h)(?)(iii)(A)(2)), or that the specific duties Ere so specialized and comp':ex that their performance 
requires howledge usually associated with at least a baccalaureate degree in a specific specialty (so as to satisfy 
the criterion of 8 C.F.R. § 214.2(h)(4)(iii)(A)(4)). 
The petitioner has established that the proffered position is compatible with the systems analyst occupational 
category. However, as reported in the Handbook, systems analyst positions are filled by persons with a broad 
spectrum of educational backgrounds including no fonmal college education, 2-year associate degrees, as well 
as bachelor or higher degrees in a computer-related specialty. Upon review of all the evidence that counsel 
and the petitioner have presented about the proffered position and its proposed duties, the A40 G~ds that the 
petitioner has not established where the proffered position lies on the educational-requirement continuum. 
The evidence of record does not convey that the position is such a complex or mique systems analyst position 
to satisfy the second alternative prong of 8 C.F.R. tj 214.2[h)(4)(iii)(A)Q2)). Likewise, the evidence does not 
convey that the  ties of the proffered position are so specialized and complex zs to be usually associated 
with a bachelor's degree, rather than with lesser educationai credentials that have equipped people to work as 
systems anzalysts. Therefore, the criterion at 8 C.F.R. 9 214.2(h)(4)(iii)(A)(4) has not Seen satisfied. 
As the petitioner has failed to establish that the proffered position qualifies as a specialty occupation under any 
crit&on of 8 C.F.R. 9 214.2(h)(4)(lii)(A), the director's decision shall not be disturbed. 
The be~rden: of proof ~n these proceedimgs rests solely w~th the pet~tioner. Section 291 of the Act, 8 U.S.C. 
3 B 361. The pehtioner has not sustanned that burden. Accordnngly, the appeal will be d~smnssed. 
ORDER: The appeal is dismissed. The petition is denied.