dismissed H-1B Case: Computer Science

U.S. Citizenship 
and Immigration 
Services 
MATTER OF D-T -, INC 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JUNE 22, 2017 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a computer company, seeks to temporarily employ the Beneficiary as a "programmer 
analyst" under the H-lB nonimmigrant classification for specialty occupations. See Immigration and 
Nationality Act (the Act) section 101(a)(l5)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b). The H-1B 
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 Director of the Vermont Service Center denied the Form I-129, Petition for a Nonimmigrant 
Worker, concluding that the Petitioner provided inconsistent information regarding the Beneficiary's 
work location, and that it was more likely than not that the Beneficiary would perform work at a 
location that was not covered by the labor condition application (LCA). 
On appeal, the Petitioner submits additional evidence and asserts that the Beneficiary will work at 
the location identified in the LCA. 
Upon de novo review, we will dismiss the appeal. 
I. SPECIALTY OCCUPATION 
A. Legal Framework 
As a preliminary matter, we will discuss the issue of whether the Petitioner has established that the 
proffered position qualifies as specialty occupation. 1 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: 
1 We address this issue with the intention that, if the petitioner seeks again to employ the beneficiary or another 
individual in the proffered position, it will submit sufficient independent objective evidence when filing a future H-1 B 
petition with this agency. 
Matter of D-T-, Inc 
(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 regulation at 8 C.F .R. § 214.2(h)( 4 )(ii) largely restates this statutory definition, but adds a 
non-exhaustive list of fields of endeavor. In addition, the regulations provide that the offered 
position must meet one of the following criteria to qualify as a specialty occupation: 
(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. 
8 C.F.R. § 214.2(h)(4)(iii)(A). We have consistently interpreted 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 Corp. v. Cherto.ff, 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"); Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
B. Proffered Position 
With the initial filing, the Petitioner provided a description of the proffered position. In response to 
the Director's request for evidence (RFE), the Petitioner revised the job description, stating that the 
Beneficiary would be responsible for the following duties: 
• Configure new code and code groups and maintain SLA's for newly added tasks 
and new Business roles and changed existing roles as per new business 
requirement (25%) 
• Preparation of F AQ' s for troubleshooting process to help the users during the 
work (10%) 
• Convert project specifications and statements of problems and procedures to 
detailed logical flow charts for coding into computer language (20%) 
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Matter of D-T-, Inc 
• Evaluate the requests for programs and systems of our clients, formulating a plan 
outlining the steps required to develop a suitable program, and writing and 
developing programs and systems according to the needs of our clients. (30%) 
• Train clients on the use of software programs and computer systems and to 
review, repair, and modify software programs to ensure the technical accuracy of 
the programs (15%) 
The Petitioner's requirements for the position varied within the record as follows: 
Requirements Initial Petition RFE Response 
Level of bachelor's bachelor's 
education 
Discipline computer science, a related analytic or scientific discipline 
computer 
engmeenng, or a 
relevant field of 
engmeenng 
Work none work experience in the field 
Experience 
The Petitioner did not explain the reason for the variance in the requirements. 
C. Analysis 
We have reviewed the entire record of proceedings before us. For the reasons discussed below, we 
have determined that the Petitioner has not demonstrated that the proffered position qualifies as a 
specialty occupation. 2 Specifically, we find that the record does not establish that the job duties 
require an educational background, or its equivalent, commensurate with a specialty occupation.3 
1. First Criterion 
We turn first to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l), which requires that a baccalaureate 
or higher degree in a specific specialty, or its equivalent, is normally the minimum requirement for 
entry into the particular position. To inform this inquiry, we recognize the U.S. Department of 
Labor's (DOL) Occupational Outlook Handbook (Handbook) as an authoritative source on the 
2 
Although some aspects of the regulatory criteria may overlap, we will address each of the criteria individually. 
3 The Petitioner submitted documentation to support the petition, including evidence regarding the position and its 
business operations. While we may not discuss every document submitted, we have reviewed and considered each one. 
3 
Matter of D-T-, Inc 
duties and educational requirements of the wide variety of occupations that it addresses.4 On the 
LCA the Petitioner presented in support of this petition, it classified the proffered position under the 
occupational title "Computer Programmers," corresponding to the Standard Occupational 
Classification code 15-1131 at a Level I wage rate. 5 
The chapter of the Handbook titled "How to Become a Computer Programmer" provides in pertinent 
part: "Most computer programmers have a bachelor's degree; however, some employers hire 
workers who have an associate's degree."6 Based on the Handbook, the fact that a person may be 
employed as a computer programmer and may use information technology skills and knowledge in 
the course ofhis or her job is not sufficient to establish the position as a specialty occupation.7 Thus, 
without more, the Handbook is insufficient to conclude that simply by virtue of its occupational 
classification the position qualifies as a specialty occupation. 
The Petitioner claims that DOL's designation of the occupational category to a Specific Vocational 
Preparation (SVP) rating "7" suggests that an individual would have college-level training and 
substantial experience in the field. We reviewed the information; however, we do not agree with the 
Petitioner's conclusion. For example, an SVP rating of 7 indicates that the occupation requires 
"over 2 years up to and including 4 years" oftraining. 8 Thus, this designation includes less thanfour 
years of preparation. Moreover, while the SVP rating indicates the total number of years of 
vocational preparation required for a particular position, it is important to note that it does not 
describe how those years are to be divided among training, formal education, and experience - and it 
does not specify the particular type of degree, if any, that a position would require.9 Thus, the 
information is not probative of the proffered position qualifying as a specialty occupation. 
4 We do not, however, maintain that the Handbook is the exclusive source of relevant information. All of our references 
are to the 2016-2017 edition of the Handbook, which may be accessed at the Internet site http://www.bls.gov/OCO/. 
5 The Petitioner classified the proffered position at a Level I wage (the lowest of four assignable wage levels). We will 
consider this selection in our analysis of the position. The '"Prevailing Wage Determination Policy Guidance" issued by 
the DOL provides a description of the wage levels. A Level I wage rate is generally appropriate for positions for which 
the Petitioner expects the Beneficiary to have a basic understanding of the occupation. This wage rate indicates: (I) that 
the Beneficiary will be expected to perform routine tasks that require limited, if any, exercise of judgment; (2) that she 
will be closely supervised and her work closely monitored and reviewed for accuracy; and (3) that she will receive 
specific instructions on required tasks and expected results. U.S. Dep't of Labor, Emp't & Training Admin., Prevailing 
Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://flcdatacenter.com/download/NPWHC _Guidance_ Revised _II_ 2009.pdf A prevailing wage determination starts 
with an entry level wage and progresses to a higher wage level after considering the experience, education, and skill 
requirements of the Petitioner's job opportunity. /d. 
6 See the Handbook, Computer Programmers (2016-17 ed.). 
7 The Petitioner also references DOL's designation of the occupational category to a Job Zone '"Four'' rating. However, 
as noted by the Petitioner, a Job Zone "Four'' rating groups it among occupations for which "most ... require a four-year 
bachelor's degree, but some do not.'' Thus, individuals who do not possess a degree may qualify for certain positions. 
Moreover, there is no indication from the rating that the degree must be in a specific specialty directly related to the 
occupation. 
8 The Appendix can be found at the following Internet site: https://www.oalj.dol.gov/PUBLIC/DOT/REFERENCES/ 
DOTAPPC.HTM. 
9 /d. 
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Matter of D- T-, Inc 
The Petitioner has not provided documentation from a probative source to substantiate its assertion 
regarding the minimum requirement for entry into this particular position. Therefore, it has not 
satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(J). 
2. Second Criterion 
The second criterion presents two alternative prongs: "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 .... " 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) (emphasis added). The first prong 
concentrates on the common industry practice, while the alternative prong narrows its focus to the 
Petitioner's specific position. 
a. First Prong 
Satisfying the first prong consists of the Petitioner establishing that the "degree requirement" (i.e., a 
requirement of a bachelor's or higher degree in a specific specialty, or its equivalent) is common to 
the industry in parallel positions among similar organizations. 
In determining whether there is such a common degree requirement, factors often considered by us 
include: whether the Handbook 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)(quotingHird/BlakerCorp. v. Sava, 712F. Supp.l095, 1102(S.D.N.Y.l989)). 
As previously discussed, the Petitioner has not established that its proffered position is one for which 
the Handbook, or other authoritative source, reports a requirement for at least a bachelor's degree in 
a specific specialty, or its equivalent. Thus, we incorporate by reference the previous discussion on 
the matter. Furthermore, the Petitioner has not offered evidence from an industry professional 
association, or from firms or individuals in the industry, indicating such a degree is a minimum 
requirement for entry into the position. Consequently, the Petitioner has not met the first prong. 
b. Second Prong 
We will next consider the second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2), which is 
satisfied if the Petitioner shows that its particular position is so complex or unique that it can be 
performed only by an individual with at least a bachelor's degree in a specific specialty, or its 
equivalent. Throughout the proceedings, the Petitioner has not claimed to qualify under this 
criterion, and it has not offered evidence to apply to the regulation at 8 C.F.R. 
§ 214.2(h)( 4)(iii)(A)(2). 
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Matter of D- T-, Inc 
3. Third Criterion 
The third criterion of 8 C.P.R. § 214.2(h)(4)(iii)(A) entails an employer demonstrating that it 
normally requires a bachelor's degree in a specific specialty, or its equivalent, for the position. 
The record must establish that a petitioner's stated degree requirement is not a matter of preference 
for high-caliber candidates but is necessitated instead by performance requirements of the position. 
See Defensor v. Meissner, 201 F.3d at 387-88. Were USCIS limited solely to reviewing the 
Petitioner's claimed self-imposed requirements, then any individual with a bachelor's degree could 
be brought to the United States to perform any occupation as long as the Petitioner created a token 
degree requirement. !d. Evidence provided in support of this criterion may include, but is not 
limited to, documentation regarding the Petitioner's past recruitment and hiring practices, as well as 
information regarding employees who previously held the position. 
On appeal, the Petitioner does not offer arguments or evidence to establish that it normally requires 
at least a bachelor's degree in a specific specialty, or its equivalent, for the proffered position. 
Therefore, it has not satisfied the third criterion at 8 C.P.R.§ 214.2(h)(4)(iii)(A). 
4. Fourth Criterion 
The fourth criterion at 8 C.P.R. § 214.2(h)(4)(iii)(A) requires a petitioner to establish that 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 in a specific specialty, or 
its equivalent. We reviewed the Petitioner's statements regarding the proffered position. However, 
it did not assert eligibility or provide evidence in support of this criterion. As a result, the Petitioner 
has not satisfied the regulation at 8 C.P.R.§ 214.2(h)(4)(iii)(A)(4). 
Because the Petitioner has not satisfied one of the criteria at 8 C.P.R.§ 214.2(h)(4)(iii)(A), it has not 
demonstrated that the proffered position qualifies as a specialty occupation. 
II. PLACE OF EMPLOYMENT 
A. Legal Framework 
The Petitioner is required to submit a certified LCA to USCIS to demonstrate that it will pay the 
Beneficiary 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 experience 
and qualifications who are performing the same services. See Matter ofSimeio Solutions. LLC, 26 
I&N Dec. 542, 545-546 (AAO 2015). 
A change in the place of employment of a beneficiary to a geographical area requmng a 
corresponding LCA be certified to the USCIS with respect to that beneficiary may affect eligibility 
for H-lB status and is, therefore, a material change for purposes of 8 C.P.R. § 214.2(h)(2)(i)(E) and 
6 
.
Matter of D-T-, Inc 
(11)(i)(A). Matter of Simeio Solutions, 26 I&N Dec. 542. When there is a material change in the 
terms and conditions of employment, the petitioner must file an amended or new H-1 B petition with 
the corresponding LCA. Id 
B. Analysis 
The Petitioner offered inconsistent information regarding the Beneficiary's work location. More 
specifically, the evidence reflecting the Beneficiary's work location included the following: 
• The Form I-129 in which the Petitioner indicated (on page 5) the Beneficiary would 
work at its location in New Jersey; however, it also checked the boxes (on 
page 5 and 21) that reflected the Beneficiary would work at an off-site location; 
• The LCA, in which the Petitioner designated its New Jersey, office as the 
Beneficiary's only place of employment; 
• The March 2016, letter in which the Petitioner stated the Beneficiary "will be 
working with one of our clients, as our employee, on a project either from our office 
or at their location based on the necessity after his arrival in US;" 
• The March 2015, letter from the president of _ (a third party vendor located 
in Georgia) titled "Ref: Master Engagement Agreement with [the Petitioner]" reflects 
that the Beneficiary's work location will be at _ Georgia facilities; 
• The March 2016 Employee Agreement between the Petitioner and the Beneficiary 
signified that the work location could be at the New Jersey, location or at 
any client's location in "any part of the United States;" 
• The September 20 16 Addendum to the Agreement between the Petitioner and 
which stated the work "shall be performed at work location 
NJ and as per need [sic] at Client 
location in GA." 
• The appeal brief presents the Beneficiary's sole work location as the Petitioner's 
office in New Jersey; and 
• The revised page 5 of the Form I-129, submitted on appeal in which the Petitioner 
changed question 3 to indicate that the Beneficiary would work onsite at the 
petitioning company's New Jersey, address; however, question 5 still 
reflects that the Beneficiary will work at an off-site location. 
Based on the inconsistent information in the record as provided by the Petitioner, we cannot 
conclude that the LCA accurately reflects the Beneficiary's place of employment as required. 10 
III. CONCLUSION 
For the reasons discussed above, the Petitioner has not established eligibility for the benefit sought. 
10 
We are unable to determine the Beneficiary's place of employment. Consequently, we must also question whether the 
Petitioner will have an employer-employee relationship with the Beneficiary. 
Matter of D-T-, Inc 
ORDER: The appeal is dismissed. 
Cite as Matter of D-T-, Inc, ID# 383920 (AAO June 22, 2017)