dismissed H-1B Case: Computer Science

U.S. Department of Homeland Security 
20 Massachusetts Avenue, NW, Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
FILE: WAC 02 227 54642 Office: CALIFORNIA SERVICE CENTER ai 14m5 
IN RE: Petitioner: 
Beneficiary: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section lOl(a)(lS)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. $ 1 lOl(a)(lS)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
Robert P. Wiemann, Director 
Administrative Appeals Office 
WAC 02 227 54642 
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 staffing company that seeks to employ the beneficiary as a computer programmer. The 
petitioner endeavors to classify the beneficiary as a nonirnmigrant worker in a specialty occupation pursuant to 
section 10l(a)(l5)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1 lOl(a)(lS)(H)(i)(b). 
The director denied the petition because the petitioner did not establish that the proffered position was a 
specialty occupation. The director also stated that the petitioner had not complied with the terms of its 
previously approved petitions. On appeal, the petitioner submits a letter. 
Section 214(i)(l) of the Immigration and Nationality Act (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. 3 214.2(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 baccalaureate or higher degree, but one in a specific specialty that is 
directly related to the proffered position. 
The record of proceeding before the AAO contains: (1) Form 1-129 and supporting documentation; (2) the 
director's request for additional evidence; (3) the petitioner's response to the director's request; (4) the 
director's denial letter; and (5) Form I-290B and supporting documentation. The AAO reviewed the record in 
its entirety before issuing its decision. 
WAC 02 227 54642 
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The petitioner is seeking the beneficiary's services as a computer programmer. Evidence of the beneficiary's 
duties includes: the 1-129 petition; the petitioner's July 8, 2002 letter in support of the petition; and the 
petitioner's response to the director's request for evidence. According to this evidence, the beneficiary would 
perform duties that entail: maintaining the in-house computer system for the petitioner's client; writing and 
developing computer programs for processing accounts payable, billing, payroll, and for generating financial 
reports and other reports required by management; handling implementation on enhancement of computer 
programs and conducting orientation for users; and answering users' inquiries and problems on Windows 
software applications. The petitioner indicated that a qualified candidate for the job would possess a 
bachelor's degree in computer science or applied mathematics. 
The director found that the proffered position was not a specialty occupation. The director found further that 
the petitioner failed to establish any of the criteria found at 8 C.F.R. 5 214.2(h)(4)(iii)(A). 
On appeal, the petitioner states that it would be the actual employer of the beneficiary. The petitioner also 
states that its record of filing numerous petitions relates to its business of staffing other organizations, and that 
it has a high turnover rate. The petitioner asserts that a bona fide position is available for the beneficiary to 
fill. The petitioner further asserts that previous petitions, which were identical to the current petition, were 
approved. 
In its letter of support, the petitioner stated that the beneficiary would "work for our client's facility in Fall 
River, MA." In its response to the director's request for evidence, the petitioner stated, "Please be advised 
that . . . the beneficiary's intended work assignment has been changed. Enclosed is a new approved Labor 
Condition Application for the new job site in Los Angeles, CA." The purpose of the request for evidence is to 
elicit further information that clarifies whether eligibility for the benefit sought has been established. 8 C.F.R. 
5 103.2(b)(8). When responding to a request for evidence, a petitioner cannot offer a new position to the 
beneficiary, or materially change a position's title or its associated job responsibilities. The petitioner must 
establish that the position offered to the beneficiary when the petition was filed is a specialty occupation. See 
Matter of Michelin Tire, 17 I&N Dec. 248, 249 (Reg. Comm. 1978). If significant changes are made to the 
initial request for approval, the petitioner must file a new petition rather than seek approval of a petition that is not 
supported by the facts in the record. 
The regulations state, "Before filing a petition for H-1B classification in a specialty occupation, the petitioner 
shall obtain a certification from the Department of Labor that it has filed a labor condition application in the 
occupational specialty in which the alien(s) will be employed." 8 C.F.R. 5 214.2(h)(4)(B)(l). Since the work 
location changed, the petitioner should have filed a new petition with a new certified LCA for the revised 
work location. 
The AAO notes that the petitioner did not provide a revised position description in its response to the 
director's request for evidence. It appears that the petitioner may be using a generic description, rather than 
one specific to the actual position and placement. It is unlikely that the position description for a computer 
programmer for two different organizations would be identically described. 
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Doubt cast on any aspect of the petitioner's proof may, of course, lead to a reevaluation of the reliability and 
sufficiency of the remaining evidence offered in support of the visa petition. It is incumbent upon the 
petitioner to resolve any inconsistencies in the record by independent objective evidence, and attempts to 
explain or reconcile such inconsistencies, absent competent objective evidence pointing to where the truth, in 
fact, lies, will not suffice. Matter of Ho, 19 I&N Dec. 582,591-92 (BIA 1988). 
Upon review of the record, the petitioner has established none of the four criteria outlined in 8 C.F.R. 
3 214.2(h)(4)(iii)(A). Therefore, the proffered position is not a specialty occupation. 
The AAO turns first to the criteria at 8 C.F.R. 3 214.2 (h)(4)(iii)(A)(I) and (2): a baccalaureate or higher 
degree or its equivalent is the normal minimum requirement for entry into the particular position; a degree 
requirement is common to the industry in parallel positions among similar organizations; or a particular 
position is so complex or unique that it can be performed only by an individual with a degree. 
Factors often considered by CIS when determining these criteria include: whether the Department of Labor's 
Occupational Outlook Handbook (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 
fm 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)(quoting HirdIBlaker Cop v. Sava, 712 F. 
Supp. 1095,1102 (S.D.N.Y. 1989)). 
The AAO routinely consults the Handbook for its information about the duties and educational requirements of 
particular occupations. No evidence in the Handbook indicates that a baccalaureate or higher degree, or its 
equivalent, is required for a computer programmer job. The Handbook states, "Bachelor's degrees are 
commonly required, although some programmers may qualify for certain jobs with 2-year degrees or 
certificates. The associate degree is an increasingly attractive entry-level credential for prospective computer 
programrners." This clearly states that a bachelor's degree in a specific specialty is not required for entry into 
the occupation. 
The petitioner did not submit any evidence regarding parallel positions in the petitioner's industry, nor does 
the record include any evidence from professional associations regarding an industry standard, or 
documentation to support the complexity or uniqueness of the proffered position. The petitioner has, thus, not 
established the criteria set forth at 8 C.F.R. 3 214,2(h)(4)(iii)(A)(l) or (2). 
The AAO now turns to the criterion at 8 C.F.R. 3 214.2(h)(4)(iii)(A)(3) - the employer normally requires a 
degree or its equivalent for the position. In response to the director's request for evidence, the petitioner supplied 
a list of four individuals who the petitioner stated have been or are employed by the petitioner as computer 
programmers. The petitioner also provided copies of their bachelor's degrees. There is no evidence in the record, 
however, regarding the petitioner's client's past hiring practices. In Defensor v. Meissner, 201 F. 3d 384 (5h Cir. 
2000), the court held that the Immigration and Naturalization Service, now CIS, reasonably interpreted the statute 
and the regulations when it required the petitioner to show that the entities ultimately employing the foreign 
nurses require a bachelor's degree for all employees in that position. The court found that the degree requirement 
WAC 02 227 54642 
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should not originate with the employment agency that brought the nurses to the United States for employment 
with the agency's clients. 
Although the record contains a staffing agreement between the petitioner and its client, the site where the 
beneficiary will work, the record does not contain a comprehensive description of the beneficiary's proposed 
duties from an authorized representative of the client. The description is identical to the general one provided 
in the letter of support; therefore, the petitioner has not demonstrated that the work that the beneficiary will 
perform for the client is that of a computer programmer or that it will qualify as a specialty occupation. 
Finally, the AAO turns to the criterion at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(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. 
To the extent that they are depicted in the record, the duties do not appear so specialized and complex as to 
require the highly specialized knowledge associated with a baccalaureate or higher degree, or its equivalent, 
in a specific specialty. As noted above, the duties in the petitioner's letter of support are general, and without 
any context as to the client's actual needs. Therefore, the evidence does not establish that the proffered 
position is a specialty occupation under 8 C.F.R. 3 214.2(h)(4)(iii)(A)(4). 
As related in the discussion above, the petitioner has failed to establish that the proffered position is a 
specialty occupation. Accordingly, the AAO shall not disturb the director's denial of the petition. 
Regarding the petitioner's assertion that identical petitions were previously approved, the record of proceeding 
does not contain copies of the visa petitions that the petitioner claims were approved. If the previous 
nonirnmigrant petitions were approved based on the same unsupported and contradictory assertions that are 
contained in the current record, the approvals would constitute clear and gross error on the part of CIS. CIS is 
not required to approve applications or petitions where eligibility has not been demonstrated, merely because 
of prior approvals that may have been erroneous. See, e.g. Matter of Church Scientology International, 19 
I&N Dec. 593, 597 (Comm. 1988). It would be absurd to suggest that CIS or any agency must treat 
acknowledged errors as binding precedent. Sussex Engg. Ltd. v. Montgomery 825 F.2d 1084, 1090 (6th Cir. 
1987); cert. denied 485 U.S. 1008 (1988). 
Furthermore, the AAO's authority over the service centers is comparable to the relationship between the court of 
appeals and the district court. Even if a service center director had approved the nonimmigrant petitions on 
behalf of the beneficiary, the AAO would not be bound to follow the contradictory decision of a service 
center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), afd 248 F.3d 1139 (5th Cir. 
2001), cert. denied, 122 S.Ct. 51 (2001). 
The director also found that the petitioner had not actually employed many of the individuals for whom it had 
previously received approval, and when it did employ them, they were frequently paid at a significantly lower 
rate than had been asserted on the Form 1-129 at the time of filing. The petitioner did not directly address this 
issue on appeal, and did not overcome the director's findings. 
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An H-1B alien is coming temporarily to the United States to perform services in a specialty occupation. 
Section lOl(a)(l5)(H)(i)(b) of the Act, 8 U.S.C. § lOl(a)(lS)(H)(i)(b). 8 C.F.R. 3 214.2(h)(l)(ii)(B). In this 
case, the petitioner did not establish that the beneficiary would be coming to the United States to perform 
services in a specialty occupation. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361. 
The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed. The petition is denied.