dismissed H-1B Case: Computer Science

U.S. Citizenship 
and Immigration 
Services 
In Re: 6130299 
Appeal of California Service Center Decision 
Form I-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : FEB. 28, 2020 
The Petitioner 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)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b) . 
The California Service Center Director denied the petition, concluding that the record did not establish 
that the proffered position qualifies as a specialty occupation. 
The petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 1 
The Administrative Appeals Office (AAO) reviews the questions in this matter de nova. 2 Upon de 
nova review , we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
Section 214(i)(l) of the Act, 8 U.S .C. § 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. 
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 proffered 
position must meet one of the following criteria to qualify as a specialty occupation: 
(1) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
1 Section 291 of the Act; Matter ofChawathe, 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) . 
(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 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 Corp. 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"). 
II. ANALYSIS 
Upon review of the totality of the record, we conclude that the Petitioner has not submitted a certified 
labor condition application (LCA) that supports the petition. Additionally, the Petitioner has not 
established it has definitive, non-speculative H-1B caliber work available for the Beneficiary to 
perform throughout the requested employment period. Further, the Petitioner has not established the 
proffered position is a specialty occupation. Specifically, the record does not establish that the job 
duties require an educational background, or its equivalent, commensurate with a specialty occupation. 
A. Certified LCA 
According to section 212(n)(l )(A) of the Act, an employer must attest that it will pay a holder of an 
H-1B visa the higher of the prevailing wage in the "area of employment" or the amount paid to other 
employees with similar experience and qualifications who are performing the same services. See 
20 C.F.R. § 655.73l(a); Venkatraman v. REI Sys., Inc., 417 F.3d 418,422 & n.3 (4th Cir. 2005); Patel 
v. Boghra, 369 F. App'x 722, 723 (7th Cir. 2010); Michal Vojtisek-Lom & Adm 'r Wage & Hour Div. 
v. Clean Air Tech. Int'!, Inc., No. 07-97, 2009 WL 2371236, at *8 (Dep't of Labor Admin. Rev. Bd. 
July 30, 2009). As such, a petitioner is only free to pay a wage that is equal to or higher than this 
minimum required wage described in section 212(n)(l)(A) of the Act. See Labor Condition 
Applications and Requirements for Employers Using N onimmigrants on H-1 B Visas in Specialty 
Occupations and as Fashion Models; Labor Certification Process for Permanent Employment of 
Aliens in the United States, 65 Fed. Reg. 80,110, 80,110-11 (proposed Dec. 20, 2000) (to be codified 
at 20 C.F.R. pts. 655-56) (indicating that the wage protections in the Act seek "to protect U.S. workers' 
wages and eliminate any economic incentive or advantage in hiring temporary foreign workers" and 
that this "process of protecting U.S. workers begins with [the filing of an LCA] with [DOL ]."). 
While the Department of Labor (DOL) is the agency that certifies LCA applications before they are 
submitted to U.S. Citizenship and Immigration Services (USCIS), DOL regulations note that the 
Department of Homeland Security (DHS) (i.e., its immigration benefits branch, USCIS) is the 
2 
department responsible for determining whether the content of an LCA filed for a particular Form 
I-129 actually supports that petition. The regulations state, in pertinent part: 
For H-lB visas ... DHS accepts the employer's petition (DHS Form I-129) with the 
DOL-certified LCA attached. In doing so, the DHS determines whether the petition is 
supported by an LCA which corresponds with the petition, whether the occupation 
named in the [LCA] is a specialty occupation or whether the individual is a fashion 
model of distinguished merit and ability, and whether the qualifications of the 
nonimmigrant meet the statutory requirements for H-lB visa classification. 
20 C.F.R. § 655.705(b) (emphasis added). 
On the LCA submitted in support of the H-1 B petition, the Petitioner designated the proffered position 
under the occupational category "Computer Systems Analysts," corresponding to the Standard 
Occupational Classification code 15-1121 at a Level II wage. The certified LCA identifies the 
prevailing wage in the area of employment for a Level II "Computer Systems Analysts" occupation 
as $67,434. Our review of the Foreign Labor Certification Data Center Online Wage Library shows 
that the prevailing wage for this occupation at a Level II wage in the area of employment when the 
petition was filed is $74,734.3 Thus, the Petitioner's attestation on the certified LCA is for a 
significantly lower wage than the occupation at the wage level, in the pertinent area of employment 
when the petition was filed. 4 
As the Petitioner has not attested that it will pay the Beneficiary a wage that is equal to or greater than 
the prevailing wage in the pertinent area of employment when the petition was filed, the petition cannot 
be approved. The Petitioner has not submitted a certified LCA that corresponds to and supports the 
petition. 
B. Availability of Specialty Occupation Work 
The Petitioner filed this petition in April 2018 for the Beneficiary's proposed employment beginning 
October 1, 2018 and ending September 12, 2020. The Petitioner, a software solutions provider located 
in Washington, states that it will assign the Beneficiary to work in its Georgia offices as a programmer 
analyst. The Petitioner initially did not provide evidence corroborating it had work available for the 
Beneficiary to perform. In response to the Director's request for evidence (RFE), the Petitioner stated 
that the Beneficiary will "work with product managers and stakeholders at I I I I (S-H-D-)" and will "design serverless architecture model and help modernize the 
I I solution." 
3 See FLC Data Center Online Wage Library at https://flcdatacenter.com/OesQuickResults.aspx?code=lS-
1121 &area~&year= 18&source= 1. 
4 The Petitioner must establish eligibility at the time of filing the nonimmigrant visa petition and must continue to be 
eligible for the benefit through adjudication. 8 C.F.R. § 103.2(b)(l ). A visa petition may not be approved at a future date 
after the Petitioner or Beneficiary becomes eligible under a new set of facts. See Matter of Michelin Tire Corp., 17 T&N 
Dec. 248, 249 (Reg'! Comm'r 1978). 
3 
In order to corroborate the availability of this work, the Petitioner submitted a master services 
agreement (MSA) with S-H-D-, executed in March 2018 and a statement of work (SOW). The SOW, 
however, is dated December 13, 2018, a date subsequent to the start date of the Beneficiary's intended 
employment period. 5 Moreover, although the SOW refers to the proposed team structure as including 
onsite roles for a delivery manager, a BA/Sr QA Lead, a technical architect, and two senior developers, 
the SOW does not include roles for programmer analysts or computer systems analysts as part of the 
onsite team. Thus, the SOW does not establish work for the Beneficiary in October 2018, the start 
date of the intended employment period, and also does not establish that it even has work for the 
proffered position subsequently. 
We have also reviewed the Petitioner's agreements and SOWs with other entities, however, these 
documents do not include sufficient detail regarding the resources needed and do not include available 
work for the duration of the intended employment period. The Petitioner has not provided probative 
evidence corroborating that it has actual work for the Beneficiary to perform. Accordingly, the record 
does not establish that the Petitioner had secured work for the Beneficiary at the time of filing the 
petition. 6 
As the record is insufficient to establish that the Petitioner has actual work available for the Beneficiary 
and thus that the position would actually exist if this petition were approved - we cannot determine 
the substantive nature of the position, let alone determine whether it is a specialty occupation. But 
even if we were to set this foundational deficiency aside entire I y ( as well as the lack of a certified LCA 
that supports the petition) the petition still could not be approved as the record does not include 
sufficient probative evidence to establish the proffered position is a specialty occupation. 
C. Specialty Occupation 
The Petitioner has not established that the proffered position requires a bachelor's degree in a specific 
specialty, or its equivalent. The Petitioner's description of proposed duties is generic and without the 
context of a particular project(s). Even if the Petitioner establishes that the proposed position should 
be designated a computer systems analyst position, such an occupation encompasses a broad base of 
responsibilities and duties and the required education and experience to adequately perform these 
duties also varies. For example, programming or technical expertise not gained through 
bachelor's-level study may be acceptable to enter into this occupation. 7 Here, the DO L's 
Occupational Outlook Handbook does not describe the normal minimum educational requirement for 
the occupation in a categorical manner since some employers accept less than a bachelor's degree. 
Further, the Petitioner has not established that a bachelor's degree in a specific specialty, or its 
equivalent, is normally the minimum requirement for entry into its particular position. 
5 The SOW also refers to an MSA executed in November 2018. Thus, it is not clear that the SOW submitted is related to 
the MSA submitted. 
6 Speculative employment is not permitted in the H-lB program. See, e.g., 63 Fed. Reg. 30,419, 30,419-20 (proposed 
June 4, 1998)(to be codified at 8 C.F.R. pt. 214). 
7 See Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, Computer Systems Analysts, at 
https://www.bls.gov/ooh/computer-and-information-technology/print/computer-systems-analysts.htm (last visited Feb. 
28, 2020). We have considered the Petitioner's assertion that the DOL's Occupational Outlook Handbook (Handbook) 
establishes this occupation as a specialty occupation. We disagree. While the Handbook reports that many computer 
systems analysts have technical degrees, the Handbook does not specify the degree level for these technical degrees ( e.g., 
associate's degree). Additionally, the Handbook states that business and liberal arts degrees may be acceptable. Id. 
4 
We also reviewed the advertisements, the Petitioner submits in support of its assertion that the degree 
requirement is common to its industry in parallel positions among similar organizations. The 
descriptions of proposed responsibilities and duties in the advertised positions are insufficient to 
establish that the advertised positions are parallel to the proffered position. We note that the majority 
of the job postings require the successful candidate to have more than three years of experience. 
However, the Petitioner does not claim an experience requirement for its particular position. 
Moreover, the Petitioner designated the proffered position as a wage Level II on the certified LCA, 
indicating that the wage is commensurate with a position that requires up to three years of experience 
but not more. Thus these advertised positions are for more senior positions than the position proffered 
here. Even if all of the job postings indicated that a bachelor's or higher degree in a specific specialty, 
or its equivalent, were required, which they do not, the Petitioner has not established that the submitted 
advertisements are relevant in that the posted job announcements are not for parallel positions. 
We also considered the Petitioner's contention that it normally only hires individuals with at least a 
bachelor's degree in computer science, or a closely-related information technology field for the same 
or similar positions. Although the Petitioner submitted paystubs and education records for five of its 
employees, it did not submit probative evidence regarding the duties of the actual positions held. 8 
Additionally, if the duties of those positions included the same or similar general duties as the proposed 
position, as discussed, such a description would not establish that a bachelor's degree in a specific 
discipline, or its equivalent, was required to perform the duties. 
Finally, we conclude that the record does not demonstrate that the duties of the proffered position are 
specialized and complex, or unique. The evidence of record lacks sufficiently detailed information to 
distinguish the proffered position as more unique or more specialized and complex than other 
technology positions that can be performed by persons without at least a bachelor's degree in a specific 
specialty, or its equivalent. We reviewed the duties and bulleted explanations provided by the 
Petitioner in relation to its particular position. However, duties such as "[r]eview the business 
requirements and pain points," "[p ]repare solution architecture aligned with the requirements," 
"[ s ]upporting [sic] application development from the specifications developed," "[ d]efine entity 
relationship models," and "[ c ]onduct Spring retrospectives and work with team" do not provide a 
comprehensible understanding of the proposed role and level of responsibility within the Petitioner's 
business operations. Also, these duties are introduced without the context of a project along with 
evidence of the stage of any particular project and resources necessary for the Petitioner to complete 
any deliverables related to a project. 
The Petitioner claims on appeal that it provided a detailed description of duties and skills required for 
the position and that it explained how the duties and skills relate to specific coursework the beneficiary 
completed in the pursuit of his degrees. However, the Petitioner has not established that the necessary 
knowledge for the proffered position is attained through an established curriculum of particular 
courses leading to a baccalaureate or higher degree in a specific specialty, or its equivalent. While a 
few courses may relate to the duties of a particular position, this does not establish that the duties 
require the "body of specialized knowledge" attained with a bachelor's degree in a specific specialty, 
or its equivalent. Core concepts developed in foundational courses or through certifications in 
8 We observe that the paystubs for the five employees vary significantly in a single pay period which strongly suggests 
that the positions are not the same or similar to each other or to the proffered position. 
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particular technology do not establish that a position 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, or its equivalent, as the minimum for entry into the occupation as required by 
section 2 l 4(i)(l) of the Act. 
The Petitioner also refers to sample work product evidencing the complexity of the duties. The work 
product is also without context or explanation. There is no indication of who authored the work 
product or that individual(s) position, role, and level of responsibility within the Petitioner's 
organization. It does not assist in establishing that the described duties are specialized and complex, or 
unique. The record does not contain explanations or clarifications regarding which of the duties, if 
any, of the proffered position would be so specialized and complex or unique as to be distinguishable 
from those of similar but non-degreed or non-specialty degreed employment. Upon review of the 
totality of the evidence submitted, the Petitioner has not established that more likely than not, the 
proffered position is a specialty occupation under any of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A). 
Moreover, the record does not establish that the Petitioner satisfied the statutory and regulatory 
definitions of specialty occupation. 
III. CONCLUSION 
The Petitioner has not established that the certified LCA supports the petition and has not established 
that it has specialty occupation work available for the Beneficiary throughout the intended 
employment period. The Petitioner also has not established that, more likely than not, the proposed 
position is a specialty occupation. 
ORDER: The appeal is dismissed. 
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