dismissed H-1B Case: Computer Science

idattieing data deleted to 
prevent clearly unwarmted 
invasion of pemond pivacy 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rrn. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
FILE: WAC 04 129 5 1448 Office: CALIFORNIA SERVICE CENTER Date: JUN 0 ? 2006 
IN RE: Petitioner: 
Beneficiary: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section I01 (a)(l 5)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 3 1 10 l(a)(l S)(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 yourcase. Any further inquiry must be made to that office. 
b 
Robert P. Wiemann, Chief 
Administrative Appeals Ofice 
WAC 04 129 51448 
Page 2 
DISCUSSION: The service center director 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 jewelry manufacturer that seeks to employ the beneficiary as a computer applications 
programmer and to classify her as a nonimmigrant worker in a specialty occupation pursuant to section 
10 1 (a)( 15)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1 10 1 (a)(l 5)(H)(i)(b). 
The director denied the petition on the grounds that the petitioner failed to establish that the proposed position 
meets the definition of specialty occupation at 8 C.F.R. 5 214.2(h)(4)(iii)(A). On appeal, counsel submits a 
brief. 
Section 214(i)(l) of the Act, 8 U.S.C. 5 1184(i)(l), 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. 
Pursuant to 8 C.F.R. tj 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; 
(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 criteria at 8 C.F.R. 
5 214.2(h)(4)(iii)(A) to mean not just any bachelor's or higher degree, but one in a specific field of study 
directly related to the proposed position. 
The record of proceeding before the AAO contains: (1) Form 1-129 and supporting documentation; (2) the 
director's request for further evidence (ME); (3) the petitioner's response to the ME; (4) the director's denial 
letter; and (5) Form I-290B with brief. The AAO reviewed the record in its entirety before issuing its 
decision. 
The petitioner seeks the beneficiary's services as an applications programmer. Evidence of the beneficiary's 
duties includes the documentation submitted with the 1-129, the response to the RFE, and the materials 
WAC 04 129 51448 
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submitted on appeal. According to this evidence, the beneficiary's duties would include: developing a 
computer software system designed to keep track of inventories that arrive from international locations and 
creating a software system that could analyze database inventory records; remedying programming bugs that 
surface during the development of applications software; designing high-speed voice and data networks that 
would enable the sharing of broadband Internet access as well as filed, printers, and fax modems within the 
networks; creating an Intrusion Detection System with programs such as C, VC, NDIS, Hook Driver, Sockets, 
TCPJIP, and Firewall; and providing integrated solutions. The petitioner stated that individuals with 
backgrounds in computer science, applied mathematics, engineering, and business administration would be 
appropriate for the job. 
The director found that the proposed position did not meet any of the criteria required for classification as a 
specialty occupation. The director found that the petitioner's business did not require the services of a 
systems programmer. The director found that a bona fide programmer position would require the beneficiary 
to have a bachelor's degree but that, in this case, no bona fide position existed. 
On appeal, counsel asserts that the proposed position is that of an applications programmer as described in the 
Department of Labor's Occupational Outlook Handbook. Counsel further asserts that two experts concluded 
that the proposed position is a specialty occupation because the nature of the duties were so specialized and 
complex that the knowledge required to perform them is usually associated with the attainment of a 
bachelor's degree. Finally, counsel asserts that the size of the petitioner's business should have no bearing on 
whether or not the proposed position is a specialty occupation. 
The petitioner need only satisfy one of the criteria at 8 C.F.R. 214.2(h)(4)(iiiXA) to establish that a position is 
a specialty occupation. Upon a thorough review, the AAO concludes that the petitioner has failed to establish 
that the proposed position meets any of the four criteria outlined in 8 C.F.R. $ 214.2(h)(4)(iii)(A). Therefore, 
the proposed position is not a specialty occupation. 
To determine whether a position qualifies as a specialty occupation, CIS looks beyond the title of the position. 
CIS considers the specific duties of the proposed position and any supporting evidence, in relation to the 
nature of the petitioning entity's business operations, to determine if the position requires the theoretical and 
practical application of a body of highly specialized knowledge and the attainment of a bachelor's degree in a 
specific field of study as the minimum for entry into the occupation. 
The AAO routinely consults the Department of Labor's Occupational Outlook Handbook (Handbook) in its 
consideration of whether or not a position is a specialty occupation and for the Handbook's information about 
the duties and educational requirements of particular occupations. Based on the petitioner's description and a 
thorough review of the Handbook, the AAO concurs with the petitioner that the description of the proposed 
position reflects the duties of applications programmers, who, according to the Handbook, 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. 
According to the Handbook, applications programmers are distinct from systems programmers, who write 
programs to maintain and control computer systems software, and who, because of their knowledge of the 
entire computer system, often help applications programmers with problems that may occur with their 
programs. The Handbook further indicates that applications programmer positions are less complex than 
systems programmers and systems analysts due to the growing use of packaged software which allows end- 
users to write simple programs to access data and perform calculations. According to the petitioner's 
description, the beneficiary will develop "a computer software system designed to keep track of inventories" 
and create "an Intrusion Detection System with programs such as C, VC, NDIS, Hook Driver, Sockets, 
WAC 04 129 5 1448 
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TCP/IP, and Firewall." Notwithstanding this, the AAO finds that the petitioner has not established that the 
proposed position is a specialty occupation. 
To determine whether the proposed position is a specialty occupation under 8 C.F.R. 214.2(h)(4)(iii)(A)(I) - 
a bachelor's or higher degree or its equivalent is normally the minimum requirement for entry into the 
particular position - the AAO turns to the Handbook's discussion of the educational requirements for 
applications programmers. The Handbook indicates that employers value practical experience in computer 
programming over formal education and that, while employers commonly require bachelor's degrees, some 
programmers may qualify for certain jobs with 2-year degrees or certificates. The Handbook indicates that an 
associate's degree is a widely used entry-level credential for prospective applications programmers. 
Counsel asserts that a bachelor's degree in computer science or a related field is normally the minimum 
requirement for entry into a job as an applications programmer. To support this assertion, the petitioner 
submits an opinion letter from omputer Science department at the 
University of California, Los Angeles (UCLA). asserts that in today's job market, 
employers seeking computer programmers to carry out business applications programming will require the 
prospective employee to hold a degree in computer science, mathematics, or a related field.- 
did not cite any industry data, surveys, or other documentation data in support of his opinion. Going on 
record without supporting documentary evidence is not sufficient for purposes 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 Handbook, a compilation of nationwide data from 
surveys, interviews, questionnaires, studies, and other sources, indicates that a two-year degree is often 
sufficient to perform the duties of an applications programmer for use in business applications. The 
Handbook distinguishes between the educational requirements of employers who use scientific or engineering 
applications and who prefer college graduates with degrees in computer science and the requirements of 
employers who use computers for business applications and prefer those who have had college courses in 
management information systems and business arid who possess strong programming skills. - 
opinion is not persuasive in establishing that a computer science or related bachelor's degree is the --- 
normal minimum requirement for entry into applications programmer positions. The AAO may, in its 
discretion, use as advisory opinion statements submitted as expert testimony. However, where an opinion is 
not in accord with other information or is in any way questionable, the AAO is not required to accept or may 
give less weight to that evidence. Matter of Caron International, 19 I&N Dec. 791 (Comm. 1988). As the 
record indicates that individuals may enter these occupations with less than a bachelor's degree, the petitioner 
has failed to establish that the proposed position qualifies as a specialty occupation under 8 C.F.R. 
5 2 14.2(h)(4)(iii)(A)(I). 
The AAO turns next to the first alternative prong of the second criterion at 8 C.F.R. 5 214.2(h)(4)(iii)(A) - a 
specific degree requirement is common to the industry in parallel positions among similar organizations. To 
determine if a position is a specialty occupation under this criterion, CIS generally considers whether letters 
or affidavits from companies or individuals in the industry attest that such companies "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 
Hird/Blaker Corp. v. Sava, 712 F. Supp. 1095, 1 102 (S.D.N.Y. 1989)). The job ads the petitioner submitted 
either do not describe the duties with sufficient particularity to determine if they are similar to the proposed 
position, or are from companies dissimilar to the petitioner, a stated jewelry manufacturer that employs six 
WAC 04 129 51448 
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people and grosses about $250,000 a year. The petitioner has not established that the degree requirement is 
common to the industry in parallel position among similar organizations. Therefore, the proposed position 
does not qualify as a specialty occupation under the first alternative prong at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(2). 
The AAO now turns to the third criterion at 8 C.F.R. 8 214.2(h)(4)(iii)(A) - the employer normally requires at 
least a bachelor's degree or its equivalent, in a specific field of study, for the position. To determine if a 
petitioner has established this criterion, the AAO generally reviews the petitioner's past employment 
practices, including the histories of those employees who previously held the position, as well as their names, 
dates of employment, and copies of their diplomas. In the instant case, the petitioner has submitted no 
evidence to establish its normal hiring practices. In the absence of an employment history for the proposed 
position, the petitioner cannot establish that its proposed position qualifies as a specialty occupation under the 
criterion at 8 C.F.R. 8 2 14.2(h)(4)(iii)(A)(3). 
Finally, the AAO turns to the criteria related to the complexity, uniqueness, or specialized nature of the 
proposed position. A petitioner satisfies the second alternative prong of the criterion at 8 C.F.R. 
5 214.2(h)(4)(iii)(A)(2) if it establishes that a particular position is so complex or unique that it can be 
performed only by an individual with a bachelor's degree in a specific field of study. The criterion at 
8 C.F.R. 5 214.2(h)(4)(iii)(A)(4) requires a petitioner to establish that the nature of the specific duties is so 
specialized and complex that the knowledge required to perform the duties is usually associated with the 
attainment of a bachelor's or higher degree in a specific field of study. a 
The record does not indicate that the proposed duties are distinguishable from those of a typical applications 
programmer, an occupation the Handbook says can be performed by individuals with associate's degrees in 
computer science and extensive programming experience. Furthermore, in light of the nature of the petitioner's 
business operations, the petitioner has failed to establish that the proposed duties are so complex, specialized, or 
unique that they would require a bachelor's degree in a computer-related field. While the petitioner stated on the 
petition that it employs six people, the contemporaneous wage records of the petitioner indicate that it employs 
two people, one of whom is the beneficiary. The 2003 tax returns indicated that the petitioner paid $26,352 in 
wages and salaries. The organizational chart submitted in response to the RFE shows five employees, three of 
whom are employed by different organizations. It is incumbent upon the petitioner to resolve any 
inconsistencies in the record by independent objective evidence. Any attempt to explain or reconcile such 
inconsistencies will not suffice unless the petitioner submits competent objective evidence pointing to where 
the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). The petitioner has not addressed these 
inconsistencies. In addition, the petitioner has not provided any evidence of the volume and complexity of its 
business upon which it bases its need for an applications programmer, such as its nationwide customer orders 
and inventories arriving from worldwide destinations on a daily basis to be tracked. The petitioner asserts 
that the position will include extensive design work on the local area network, but the petitioner only appears 
to have one computer. The petitioner has not established that it has a complex local area network for the 
beneficiary to design and work on. Simply going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Sofici, 22 I&N Dec. 
158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 
1972)). 
WAC 04 129 5 1448 
Page 6 
Counsel asserts that the complex nature of the proposed position requires that the beneficiary hold at least a 
bachelor's degree or its equivalent in a computer-related field. To support this 
submits opinion letters from two professors: from UCLA and 
from the credentials evaluation service, International Credential Evaluators, Inc. These letters 
are not probative. Neither professor provides sufficient detail and analysis to establish this complexity. 
The professors assert that the duties of the pro beneficiary to hold a degree in 
computer science, mathematics, or a related field. states that his statement is based 
primarily on his review of the beneficiary's academic credentials. Neither professor notes that the petitioner 
is a jewelry maker and store that employs two people and grosses about $250,000 a year. The authors do not 
indicate that they reviewed company information about the petitioner, visited the petitioner's site, or 
interviewed the petitioner. The petitioner designs, manufactures, and sells jewelry. The petitioner's lease 
indicates that the business premises consist of 284 rentable square feet. The petitioner states that the duties of the 
position will include extensive IT and database solutions and network programming and security. The petitioner 
fails, however, to establish that the IT and database solutions and network programming and security duties for a 
jewelry manufacturer with one computer, and occupying 284 square feet with two employees requires a 
bachelor's degree in a specialty. While some applications programmer positions may require a bachelor's 
degree in computer science or a related field, neither professor gives sufficient details about the complexity of 
the duties in relation to the petitioner's jewelry business to substantiate his conclusions. There is thus an 
inadequate factual foundation established to support the opinions. As the duties of the position have not been 
substantiated by the facts of record, the AAO will accord less weight to the testimony of the experts submitted 
by the petitioner. Matter of Caron International. The AAO is not persuaded that the nature of the specific 
duties of the proposed position is more specialized and complex than that of a typical applications 
programmer and that the knowledge required to perform the duties is usually associated with the attainment of 
a bachelor's or higher degree in computer science or a related field. The opinions of these two professors are 
not sufficiently specific to establish the referenced criteria at 8 C.F.R. tj 214.2(h)(4)(iii)(A)(2) and 8 C.F.R. 
tj 2 14.2(h)(4)(iii)(A)(4). 
Thus, the petitioner has not established that the proposed position is a specialty occupation. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
tj 1361. The petitioner has failed to sustain that burden and the appeal shall accordingly be dismissed. 
ORDER: The appeal is dismissed. The petition is denied.