dismissed H-1B Case: Computer Science

U.S. Citizenship 
and Immigration 
Services 
In Re: 4615466 
Appeal of Vermont Service Center Decision 
Form I-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : FEB. 19, 2020 
The Petitioner seeks to temporarily employ the Beneficiary as a "systems 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 Vermont Service Center Director denied the petition, concluding that the record did not establish 
that the Petitioner will have specialty occupation available for the Beneficiary throughout the intended 
employment period and that the services performed will qualify as specialty occupation services . 
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 established it has 
definitive, non-speculative H-1 B caliber work available for the Beneficiary to perform throughout the 
requested employment period, thus 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. 
We conclude first that the Petitioner has not established the existence of definitive, non-speculative 
employment for the Beneficiary. In a letter in support of the petition, the Petitioner described the 
proposed position in broad and general terms and stated that the Beneficiary "will be assigned to [its] 
in-house project" I I a mobile inspection application. Although the Petitioner provided an 
outline 3 of this project, the record does not include evidence of the number of resources needed for 
the project, 4 a roadmap detailing the stage of this project, 5 or evidence corroborating the Petitioner's 
claim that it has a market for the resulting mobile application product. 6 The Petitioner's descriptions 
3 The outline also includes a section onl ~ which appears to be a separate product. 
4 In response to the Director's request for evidence (RFE), the Petitioner provided a project estimation for its claimeLJ 
I I project which noted the project would require a project manager, developer, tester, and support team and listed the 
number of hours the project would require the services of these occupations. However, the Petitioner does not indicate the 
number of individuals it will need in each of the occupations and does not indicate how many individuals it employs to 
work on the product. 
5 Other than stating that it is currently developing this project, the Petitioner does not provide evidence showing when the 
project started, its anticipation of when each stage will be completed, and when the project has been or will be rolled out. 
6 In response to the Director's RFE. the Petitioner submitted a brief market analysis for the product and an unsigned 
statement of work (SOW), as well as a service order, dated July 31, 2018, for a limited number of services to integrate the 
I I product. On appeal, the Petitioner submits a purchase order, dated July 18, 2018, regarding installation of the 
I I product on a customer's devices and a pricing proposal for services dated June 18, 2018. The uncorroborated 
information submitted is insufficient to establish that thel I product is proprietary and that the Petitioner requires 
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of the proposed duties are not described within the context of the project and the Petitioner does not 
submit any other 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. 7 The Petitioner must establish eligibility at the time of filing the 
nonimmigrant visa petition. 8 C.F.R. § 103.2(b)(l). A visa petition may not be approved at a future 
date after the Petitioner or the Beneficiary becomes eligible under a new set of facts. See Matter of 
Michelin Tire Corp., 17 I&N Dec. 248 (Reg'l Comm'r 1978). 
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 entirely we would still have significant 
questions as to the proffered position's actual, substantive nature due to the inconsistencies, and 
deficiencies within the record. 
For example, the Petitioner initially asserted that the pos1t10n requires a bachelor's degree in 
"computer science, management information systems, business administration, electrical engineering, 
electronics engineering, commerce, economic [sic], a relative analytic or scientific discipline, or the 
equivalent thereof." The Petitioner's claim that a bachelor's degree in business administration is 
sufficient for the proffered position is inadequate to demonstrate that the position is a specialty 
occupation. A petitioner must demonstrate that the proffered position requires a precise and specific 
course of study that relates directly and closely to the position in question. There must be a close 
correlation between the required specialized studies and the position; thus, the mere requirement of a 
general degree, such as business administration, without further specification, does not establish the 
position as a specialty occupation. Cf Matter of Michael Hertz Assocs., 19 I&N Dec. 558, 560 
(Comm'r 1988) ("The mere requirement of a college degree for the sake of general education, or to 
obtain what an employer perceives to be a higher caliber employee, also does not establish 
eligibility."). Thus, while a general-purpose bachelor's degree in business administration may be a 
legitimate prerequisite for a particular position, requiring such a degree, without more, will not justify 
a conclusion that a particular position qualifies for classification as a specialty occupation. Royal Siam 
Corp., 484 F.3d at 147. 8 
In response to the Director's request for evidence (RFE), the Petitioner again listed general duties for 
the proffered position and provided a different iteration of the minimum requirements to perform the 
position. The Petitioner deleted several of the fields of study without explanation. Moreover, the 
Petitioner did not offer a cogent analysis of why the position requires a bachelor's degree in "Computer 
the services of a systems analyst to install or integrate the claimed application or that such work would incorporate work 
of a specialty occupation nature. 
7 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). 
8 A general degree requirement does not necessarily preclude a proffered position from qualifying as a specialty 
occupation. For example, an entry requirement of a bachelor's or higher degree in business administration with a 
concentration in a specific field, or a bachelor's or higher degree in business administration combined with relevant 
education, training, and/or experience may, in certain instances, qualify the proffered position as a specialty occupation. In 
either case, it must be demonstrated that the entry requirement is equivalent to a bachelor's or higher degree in a specific 
specialty that is directly related to the proffered position. The Petitioner has not provided such evidence here. 
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Science, Computer Applications, Engineering (Electronics, Electrical, Electronics and 
Communication, Computer, Information Technology), or a related discipline and how these various 
degrees directly relate to the proffered position. 9 The inconsistent versions of the requirements to 
perform the duties of the position validate our conclusion that the Petitioner did not have a position 
available for the Beneficiary to perform. Significantly, the inconsistencies in the requirements also 
confirm that more likely than not the proffered position is a specialty occupation. 10 
Further, the Petitioner does not discuss the nature of the proposed position on appeal. The Petitioner 
identified the proffered position on the Form I-129, Petition for a Nonimmigrant Worker, as a systems 
analyst. On the labor condition application (LCA) 11 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. 12 However, the 
duties as described are so general that they provide little insight into the Beneficiary's day-to-day 
tasks, so that we may ascertain the nature and level ofresponsibility of the proposed position, including 
whether the duties as generally described correspond to the occupation designated on the LCA. The 
Petitioner does not detail the proposed duties in relation to its claimed product or further address the 
Beneficiary's role within its business operations. 
The record does not include probative consistent evidence to support a conclusion that the Petitioner's 
proposed position requires a minimum, specialty degree requirement, or its equivalent, for entry. The 
proposed duties as described are insufficient to establish that the proffered position is a systems analyst 
position, and further that they require both the theoretical and practical application of a body of highly 
specialized knowledge and the attainment of a baccalaureate or higher degree in a specific specialty, or 
its equivalent, as the minimum for entry into the occupation. See section 214(i)(l) of the Act; 8 C.F.R. § 
214.2(h)(4)(ii) (defining the term "specialty occupation). 
For all of these reasons, we conclude that the Petitioner has not established the substantive nature of the 
work to be performed by the Beneficiary, which therefore precludes a conclusion that the proffered 
9 We have reviewed the opinion prepared b~..__ _______ _.Mrho offers a third version of the requirements needed 
to perform the duties of the Petitioner's initially described position which further compounds the number of inconsistencies 
in the record. 
10 The Petitioner also included a printout of its job postings which includes postings for a senior business systems analyst 
among other positions. The brief description for the posted position does not correspond to the duties the Petitioner ascribes 
to the position proffered here. Moreover, the posting indicates that a master's in computer science, applications, 
engineering ( electronic, electrical, telecom) or a bachelor's degree in computer science, applications, engineering, followed 
by at least five years of progressive experience in the field, are the requirements for the position. The Petitioner, however, 
does not specify that any experience is required for the position proffered here. The relevance of these job postings is 
unclear as they seem to raise fm1her questions regarding the Petitioner's minimum requirements for the position proffered 
here. 
11 The Petitioner is required to submit a certified LCA 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 who are performing the same services. See Section 
212(n)(l) of the Act; 20 C.F.R. ~ 655.73 l(a). 
12 We observe that even if the Petitioner had established 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. 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. 19, 2020). 
4 
position satisfies any criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A), because it is the substantive nature of that 
work that determines (1) the normal minimum educational requirement for entry into the particular 
position, which is the focus of criterion 1; (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. 
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 or 
regulatory definition of specialty occupation. 
III. CONCLUSION 
The Petitioner has not presented probative evidence or argument sufficient to establish that it has definite, 
non-speculative H-lB caliber work available for the Beneficiary or that, more likely than not, the 
proffered position is a specialty occupation as defined by the regulations and the statute. 
ORDER: The appeal is dismissed. 
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