dismissed H-1B Case: Computer Science

U.S. Citizenship 
and Immigration 
Services 
In Re: 19444843 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: NOV . 16, 2021 
The Petitioner seeks to temporarily employ the Beneficiary under the H-lB nonirnrnigrant classification 
for specialty occupations . See Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b) , 
8 U.S.C. § 1101(a)(15)(H)(i)(b) . The H-lB program allows a U.S . employer to temporarily employ a 
qualified foreign worker in a position that requires both (a) the theoretical and practical application of 
a body of highly specialized knowledge and (b) the attainment of a bachelor's or higher degree in the 
specific specialty ( or its equivalent) as a minimum prerequisite for entry into the position. 
The Vermont Service Center Director denied the petition , concluding that the Petitioner did not submit 
sufficient evidence to establi sh the actual work to be performed by the Beneficiary; thus , the Petitioner 
had not demonstrated that it had specialty occupation work for the Beneficiary to perform. In these 
proceedings , it is the Petitioner ' s burden to establish eligibility for the requested benefit by a 
preponderance of the evidence . 1 
Upon de nova review, we will dismiss the appeal. 2 
I. LEGAL FRAMEWORK 
According to the filing requirements for applications and petitions found at 8 C.F .R. § 103 .2(b )( 1 ), 
... [ a ]n applicant or petitioner must establish that he or she is eligible for the requested 
benefit at the time of filing the benefit request and must continue to be eligible through 
adjudication. Each benefit request must be properly completed and filed with all initial 
evidence required by applicable regulations and other USCIS instructions . Any 
evidence submitted in connection with a benefit request is incorporated into and 
considered part of the request. 
The regulations require that before filing a Form 1-129, Petition for a Nonimmigrant Worker, a 
petitioner obtain a certified labor condition application (LCA) from the Department of Labor (DOL) 
1 See section 291 of the Act; Matter of Chawathe, 25 I&N Dec. 369, 375 (AAO 2010). 
2 See Matter of Christo 's Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). 
in the occupational specialty in which the H-1 B worker will be employed. 3 Additionally, a petitioner 
submits the LCA to the DOL to demonstrate that it will pay an H-lB worker the higher of either the 
prevailing wage for the occupational classification in the area of employment or the actual wage paid 
by the employer to other employees with similar duties, experience, and qualifications. 4 
Section 10l(a)(15)(H)(i)(b) of the Act defines an H-lB nonirnrnigrant as a foreign national "who is 
corning temporarily to the United States to perform services ... in a specialty occupation described in 
section 214(i)(l) ... "(emphasis added). Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the 
term "specialty occupation" as an occupation that requires "theoretical and practical application of a 
body of highly specialized knowledge, and 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 
regulation at 8 C.F.R. § 214.2(h)(4)(ii) largely restates section 214(i)(l) of the Act but adds a 
non-exhaustive list of fields of endeavor. In addition, 8 C.F.R. § 214.2(h)(4)(iii)(A) provides that the 
proffered position must meet one of four criteria to qualify as a specialty occupation position. 5 Lastly, 
8 C.F.R. § 214.2(h)(4)(i)(A)(l) states that an H-lB classification may be granted to a foreign national 
who "will perform services in a specialty occupation ... " ( emphasis added). 
Accordingly, to determine whether the Beneficiary will be employed in a specialty occupation, we 
look to the record to ascertain the services the Beneficiary will perform and whether such services 
require the theoretical and practical application of a body of highly specialized knowledge attained 
through at least a bachelor's degree or higher in a specific specialty or its equivalent. Without 
sufficient evidence regarding the duties the Beneficiary will perform, we are unable to determine whether 
the Beneficiary will be employed in an occupation that meets the statutory and regulatory definitions of 
a specialty occupation and is a position that also satisfies at least one of the criteria at 8 C.F.R. 
§ 2 l 4.2(h)( 4)(iii)(A). The services the Beneficiary will perform in the position determine: (I) the normal 
minimum educational requirement for entry into the particular position, which is the focus of criterion 
I; (2) industry positions which are parallel to the proffered position and thus appropriate for review 
for a common degree requirement, under the first alternate prong of criterion 2; (3) the level of 
complexity or uniqueness of the proffered position, which is the focus of the second alternate prong 
of criterion 2; ( 4) the factual justification for a petitioner normally requiring a degree or its equivalent, 
when that is an issue under criterion 3; and ( 5) the degree of specialization and complexity of the 
specific duties, which is the focus of criterion 4. 6 
Further, as recognized by the court inDefensor v. Meissner, 201 F.3d 384, 87-88 (5th Cir 2000), where 
the work is to be performed for entities other than the petitioner, evidence of the client companies' job 
requirements is critical. The court held that the former Immigration and Naturalization Service had 
reasonably interpreted the statute and regulations as requiring the petitioner to produce evidence that 
a proffered position qualifies as a specialty occupation on the basis of the requirements imposed by 
3 See 8 C.F.R. § 214.2(h)(4)(i)(B). 
4 See section 212(n)(l) of the Act, 8 U.S.C. § 1182(n)(l )(A); 20 C.F.R. § 655. 731 (a). 
5 8 C.F.R. § 214.2(h)(4)(iii)(A) must be read with the statutory and regulatory definitions of a specialty occupation under 
section 214(i)(l) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). We construe the term "degree" to mean not just any 
baccalaureate or higher degree, but one in a specific specialty that is directly related to the proposed position. See Royal 
Siam COip. v. Chertoff, 484 F.3d 139, 147 (1st Cir. 2007) (describing "a degree requirement in a specific specialty" as 
"one that relates directly to the duties and responsibilities of a particular position"). 
6 See 8 C.F.R. § 214.2(h)(4)(iii)(A). 
2 
the entities using the beneficiary's services. Id. Such evidence must be sufficiently detailed to 
demonstrate the type and educational level of highly specialized knowledge in a specific discipline 
that is necessary to perform that particular work. 
By regulation, the Director is charged with determining whether the petition involves a specialty 
occupation as defined in section 214(i)(l) of the Act. 7 The Director may request additional evidence 
in the course of making this determination. 8 In addition, a petitioner must establish eligibility at the 
time of filing the petition and must continue to be eligible through adjudication. 9 
TI. ANALYSTS 
Upon review of the record in its totality, we conclude that the Petitioner has not established the services 
the Beneficiary will perform. Specifically, we are unable to determine the substantive nature of the 
work the Beneficiary will perform, which precludes a determination that the proffered position 
qualifies as a specialty occupation under sections 10l(a)(l5)(H)(i)(b), 214(i)(l) of the Act; 8 C.F.R. 
§ 214.2(h)(4)(i)(A)(l), 8 C.F.R. § 214.2(h)(4)(ii) and (iii)(A). 10 
The Petitioner indicated on the Form I-129 that the Beneficiary will work offsite as a systems analyst. 
On the certified LCA the Petitioner identified the Beneficiary's work location as at its corporate offices 
and at the offsite location; the Petitioner designated the proffered position under the occupational 
category "Computer Systems Analysts" corresponding to the Standard Occupational Classification 
(SOC) code 15-1121 at a Level I wage. 11 
A. Minimum Requirements 
In its letter in support of the petition, the Petitioner claimed that as with any systems analyst position, 
the usual minimum requirement for performance of the job duties is a bachelor's degree, or equivalent, 
in computers, engineering, or a related field and for a position at the level offered ( a level I) it is not 
uncommon for the incumbent to possess a master's degree and/or a number of years of experience of 
increasing responsibility in programming analysis or engineering. This claim is not persuasive. First, 
we point out that the Occupational Information Network (O*NET) Summary Reports for the 
"Computer Systems Analysts" occupation, when the petition was filed, showed that less than half of 
those surveyed had a bachelor's or higher degree and further does not identify the specific discipline 
for any bachelor's or higher degree that might be required. 12 Similarly, although the Department of 
7 See 8 C.F.R. § 214.2(h)(4)(i)(B)(2). 
x See 8 C.F.R. § 103.2(b)(8). 
9 8 C.F.R. § 103.2(b)(l). 
10 The Petitioner submitted documentation in the underlying record to support the H-lB petition. Although we may not 
discuss every document submitted, we have reviewed and considered each one. 
11 The O*NET recently updated its occupational classifications. The "Computer Systems Analysts" occupation is now 
identified as SOC code 15-1211. See Summary Report for: 15-1121.00 - Computer Systems Analysts, O*NET OnLine 
Archives (Nov. 17, 2020), https:/ /www.onetonline.org/ Archive_ ONET­
SOC _ 201 O _Taxonomy_ 09 _ 2020/link/summary/15-1121.00/. 
12 See Id. 
3 
Labor, Occupational Outlook Handbook (Handbook) reported that a general "computer or information 
science field is common," it also noted that this is not always a requirement. 13 
Further, the advertisements submitted by the Petitioner in response to the Director's request for 
evidence (RFE), also reflect a range of requirements to perform a systems analysts position, including 
a master's degree in computer science and two years of experience, a bachelor's degree in computer 
science or information technology and some undefined experience in particular third party software, 
or a general bachelor's degree and two to three years of programming experience. Thus, it appears 
that the duties of a particular position generate the minimum requirements to perform a systems 
analysts position rather than the occupation itself having a normal minimum educational requirement. 
Accordingly, the Petitioner must detail the duties of its particular position to demonstrate what 
educational requirements, if any, are necessary. The Petitioner has not done so here. 
We also conclude that the Petitioner's claim that it is not uncommon for an incumbent to possess a 
master's degree and/or a number of years of experience of increasing responsibility in programming 
analysis or engineering a position at the level offered (a level I wage) is also unpersuasive. A level I 
wage is an entry level wage and is assigned to job offers for beginning level employees who have only 
a basic understanding of the occupation; employees who perform routine tasks that require limited, if 
any, exercise of judgment and who work under close supervision and receive specific instructions on 
required tasks and results expected. 14 So that an occupation at a level I wage for a JobZone "Four" 
occupation, such as a Computer Systems Analysts" would require significant increases in the wage 
level, if indeed a master's degree, or more than two years of experience was required. 15 
Finally, the record shows that the Beneficiary will perform work for a third party. As stated above, 
where the work is to be performed for entities other than the petitioner, evidence of the client 
companies' job requirements is critical. 16 Here, neither the end-client's letters nor the purchase order 
for the Beneficiary's services specify a minimum requirement to perform the duties described. The 
end-client's lack of a minimum educational requirement for the work to be performed undermines the 
Petitioner's claim that the proffered position is a specialty occupation. 
B. Substantive Nature 
The Petitioner in this matter provided such a broad overview of the proposed position that the duties 
could fall within the parameters of any number of technology occupations. The description of 
proposed duties by the end-client also fails to include sufficient comprehensible information to 
ascertain the Beneficiary's actual duties and role within the end-client's or Petitioner's business 
operations. The end-client perfunctorily described the proposed duties as follows: 
13 See Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, Computer Systems Analysts, 
https://www.bls.gov/ooh/computer-and-information-technology/computer-systems-analysts.htm (last visited Nov. 16, 
2021 ). 
14 See U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. 
Immigration Programs (rev. Nov. 2009), available at 
http:/ /www.foreignlaborcert.doleta.gov/pdf/NPWHC _Guidance_ Revised_ 11 _ 2009 .pdf 
is Id. 
16 Delensor, 201 F.3d at 387-88. 
4 
• Overseeing DBMS software installations on all UNIX flavors. 
• Managing physical (infrastructure) database environment including file system, 
memory usage, startup/shutdown, backup & archival solution, and high availability 
solutions. 
• Managing backups, recovery, monitoring, and resolving infrastructure and DBMS 
related problems. 
• Platform database cloning using RMAN backup. 
• Performance tuning of large database for optimal performance usmg A WR, 
AUTOTRACE, SQL TRACING, EXPLAIN PLAN, ADDM. 
• Perfonn media recovery in the event of system/database failure. 
• Migration and maintenance of Oracle Databases (llg /10g/9i). 
• Cloning and re-building of databases from production to other environments in a 
short span of time. 
• Bulk Loading of Data to Database (Using SQL* Loader) . 
• Prepare Root Cause Analysis (RCA) for Sevl and Sev2 tickets. 
To determine whether a particular job qualifies as a specialty occupation, we do 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. We must examine the ultimate 
employment of the individual and determine whether the position qualifies as a specialty 
occupation. 17 The record here does not include adequate information to delineate how the 
jargon-laden job description translates to comprehensible duties and responsibilities and how such 
work will be conducted within the context of the end-client's project(s) 18 and the Petitioner's overall 
business operations. 
The duties described reflect significant usage of third-party tools and technologies. Many of these 
tools are used to automate processes or to facilitate shortcuts to time-consuming manual functions, 
which suggests that the proffered position requires knowledge of the tool more than the functions or 
processes underlying the tool. As third-party tools and technologies need not be learned in a bachelor's 
degree program in a specific specialty, it appears that knowledge sufficient to perfonn the proffered 
position's duties could be gained through certifications or trainings on the tools and technologies . 
Additionally, as the vaguely described duties are without detail and context we cannot determine the 
substantive nature of the work. Further, without more information regarding the Beneficiary's role 
within the project , which has not been substantiated in the record, we cannot ascertain the complexity, 
uniqueness, or specialization of the duties, or whether the position is appropriately designated as a 
"Computer Systems Analysts" occupation. 
17 See generally Defensor 201 F.3d at 387-88. 
18 On appeal, the Petitioner includes an overview of a project and projected timeline to develop a mobile application 
product for installation. This information does not assist in determining the Beneficiary's proposed role and level of 
responsibility within a team, at the end-client facility, or within the Petitioner 's business operations . Moreover, this 
information was not submitted for the Director's review, although such evidence was requested in the RFE. Where, as 
here, a petitioner has been put on notice of a deficiency in the evidence and has been given an opportunity to respond to 
that deficiency, we will not accept evidence offered for the first time on appeal. See Matter of Soriano , 19 l&N Dec. 764, 
766 (BIA 1988); see also Matter of Obaigbena , 19 I&N Dec. 533, 537 (BIA 1988). 
5 
The limited information in the record regarding the proposed position does not provide sufficient 
insight into the Beneficiary's actual duties, nor do they include details regarding the specific tasks that 
the Beneficiary will perform as they relate to the assigned project. The statements also do not 
demonstrate how the performance of these duties, as described in the record, would require the 
attainment of a bachelor's or higher degree in a specific specialty, or its equivalent. The overall 
responsibilities for the proffered position contain general functions without providing sufficient 
information regarding the particular work and the associated educational requirements into which the 
duties would manifest themselves in their day-to-day performance within the end-client project(s). 
Such generalized information does not in itself establish a necessary correlation between any 
dimension of the proffered position and a need for a particular level of education, or educational 
equivalency, in a body of highly specialized knowledge in a specific specialty. It is not evident that 
the proposed duties, as described in the record, comprise or merit recognition of the proffered position 
as a specialty occupation. 
III. CONCLUSION 
A crucial aspect of this matter requires that the Petitioner establish that the proffered position is an 
H-lB caliber position. Here, we cannot ascertain the actual duties the Beneficiary will be required to 
perform for the end-client, and we do not have the end-client's requirements to perform the duties of 
the position, thus, we cannot conclude that the proffered position is a specialty occupation. The 
Petitioner has not established the substantive nature of the work to be performed by the Beneficiary 
which precludes a conclusion that the proffered position satisfies any criterion at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A) and is also an occupation that meets the statutory and regulatory definitions of a 
specialty occupation as defined by section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), 8 C.F.R. 
§ 214.2(h)(4)(ii), and (iii)(A). In visa petition proceedings, it is the petitioner's burden to establish 
eligibility for the immigration benefit sought. 19 The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
19 See Section 291 of the Act, 8 U.S.C. § 1361. 
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